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Breaking up is hard to do

View profile for Karen Johnson
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People contemplating divorce do not generally do so lightly. Separation involves huge emotional upheaval, whether you have reached that decision together or not. In all cases it throws up issues such as where you will all live, how the finances should be resolved and how the arrangements for the children should be managed. This is all whilst you grieve the lost relationship and face a future completely different from the one that you had envisaged.

Other than age, relationship, capacity and a prohibition on bigamy, the law imposes very few restrictions or requirements that must be met if people wish to get married. If, however, those same people wish to get divorced, then it is an entirely different matter.

Divorce has never been easy. In the 1800’s there were just three options, and these were all controlled by the Church. It was an extremely expensive and long process and, quite apart from the difficulty with the procedure, the wife had virtually no rights. In 1857, the responsibility for divorce was taken away from the church and given to the newly formed civil courts. There remained an inequality in the rights available to men and to women though, as men could obtain a divorce if they were able to prove adultery whilst women had to prove adultery and either physical cruelty, incest, rape, sodomy, bestiality, bigamy or 2 years’ desertion.

It was not until 1923 that men and women were placed on an equal footing and could petition for divorce if they could prove the other’s adultery, and in 1937 additional grounds of cruelty, desertion and incurable insanity were made available.

The current divorce provisions came about in 1973. The rules provided that in order to obtain a divorce it would be necessary to show that a marriage had irretrievably broken down by establishing at least one of five facts. The options are adultery, unreasonable behaviour, 2 years’ separation and consent, desertion and 5 years’ separation. It is largely a paper exercise, as hearings are only required where the proceedings are defended (less than 1%) or if the respondent is applying for Decree Absolute.

There has, however, been increasing concern that the current law is not fit for purpose. The law is something which is put in place by people to help maintain order, establish standards, resolve disputes, and protect rights and freedoms. It can be seen as a guide for what is acceptable in society. As such it can be subject to change and these changes are often a result in changes in social attitudes.

As a family lawyer, I would consider that the current divorce rules are long overdue revision. We often see reference in the press to a “quickie-divorce”, however, in the event that a couple separates and does not want to wait at least two years before getting divorced, the current laws require one of them to be blamed for the breakdown in the marriage. This is further compounded by the fact that even if they would prefer to wait and have a “blameless” divorce in 2 years’ time, the court has limited powers to resolve financial issues in the absence of divorce proceedings. Consequently, they may be forced to point the finger of blame so that proceedings can be issued to resolve the financial issues and allow both husband and wife to move forwards. On top of this, a couple wishing to divorce face a process, which, following a reallocation of the divorce process to regional divorce centres (to streamline the process), has increased the time taken to obtain a divorce from around 5 months to 12 months.

Family solicitors have long recognised the importance in facilitating negotiations in relation to divorce and separation in a way that preserves the dignity of all involved and is constructive and non-confrontational. This is what people want. - it mirrors current attitudes. Yet the law does not reflect that and, in fact, positively encourages the opposite. The problems with the current law were most recently highlighted in the case of Owens v Owens, a defended divorce in which the court determined that the wife was not entitled to a divorce on the grounds on her husband’s unreasonable behaviour, and which means that unless the husband was to consent to a divorce sooner, Mrs Owens will have to wait until they have been separated for 5 years before she will be able to obtain a divorce.

Following on from that case, the Ministry of Justice launched a consultation paper on the Reform of Legal Requirements for Divorce, which closed on the 10 December 2018.

The proposal is that the current system will be replaced by one which is based upon notification, where one or both parties would make an application to the court stating that they believed that the marriage had irretrievably broken down, there would be no right to defend the divorce and either party would be able to apply for the final divorce order after a waiting period.

I think the benefits of the proposed changes include:

  • A process which has irretrievable breakdown as the sole reason for divorce, but requires no proof, ensures that couples are reminded that they are expected to look to see whether the marriage can be saved.  
  • The possibility of a joint application will enable couples to feel that it is a joint process.
  • The fact that no blame is apportioned will help parties focus on making future arrangements for themselves and their children going forwards in a positive manner.

My concerns in relation to the proposed changes are:

  • The waiting period or minimum timescale for divorce. Whilst I accept that the process should not be available so quickly that parties are encouraged to act in haste and later regret the divorce, the government should respect the fact that they are dealing with adults who in all likelihood will have already done a lot of soul searching before applying for divorce. The current “cooling off period” of 6 weeks and one day between Decree Nisi and Decree Absolute adds a further consideration period and there is no reason that should be extended to potentially 6 months.
  • The removal of certain safeguards. The current rules include provisions which prevent pronouncement of a divorce in certain circumstances, for example on the basis of 5 years’ separation, if it would cause grave financial hardship. The pronouncement of a final divorce order has significant ramifications in relation to financial matters. Although, the parties’ financial claims against each other will largely remain, they will no longer be considered spouses and, as such, will lose rights in relation to pensions and life insurance policies. In order to address this there should remain the ability for respondents to be able to apply to the court for a stay on the divorce proceedings until the financial matters are resolved, or for the process itself to require that when making an application for the final divorce order, there must be either a) no current application for a financial remedy order issued by either party or b) there must be a financial remedy order.

If you or anyone you know would like more information on how we can help, I am based at our Colchester office and can be contacted on 01206 217305 or karen.johnson@birkettlong.co.uk.

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