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Archive for the ‘No Fault Divorce’ tag

Ending the Divorce Blame Game

Stuart Duncan a family lawyer with Charles Lucas & Marshall, believes we are overdue a change in the law which will allow couples to divorce with minimum conflict.

Stuart Duncan

Stuart Duncan

The law affecting families in England and Wales is changing. Since legal aid was withdrawn from family law cases in 2012, resolving disputes amicably has never been more important. An increasing number of people are having to navigate complex legal rules without legal support and at one of the most difficult times of their lives.

Our current divorce laws are not helping, as they effectively encourage separating couples to blame each other for the breakdown of their marriage.

At the moment a couple cannot agree to a divorce unless they have been separated for more than two years. In the majority of cases one person has to blame the other for behaving unreasonably or committing adultery to obtain a divorce.

This can create unnecessary conflict and make it harder to reach agreement on more important issues such as their children and finances.

As lawyers, we can end up spending several months arguing about who is responsible for the marriage breakdown when it would be more productive to focus on other issues.

We encounter a large number of people who would like to divorce amicably but cannot do so under the current system.

The Family Law Act 1996 was supposed to introduce no-fault divorce but was abandoned by the Blair government.

There is now growing consensus that people should not have to blame each other to end their relationship.

The Law Commission, tasked with reviewing and recommending reform, supports no-fault divorce, as do a number of Family Division and Supreme Court Judges. The President of the Family Division believes that no-fault divorce would ‘bring some intellectual honesty to the system.’

He says, ‘a District Judge has to go through the ritual of assessing whether the cited reason for a divorce is acceptable when both parties often agree that it is… we have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce… the process is essentially a bureaucratic, administrative process, albeit one conducted by a District Judge.’

Resolution, an organisation of 6,500 family lawyers and other professionals, believes that all family matters should be approached in a constructive and non-confrontational way. In a recent survey, over 90 per cent of members agreed that no-fault divorce should be available to all separating couples. A recent campaign gathered significant support on social media and lobbied MPs for a change in the law.

Many other countries around the world – including Australia, the United States, and Spain – have already introduced no-fault divorce. It remains to be seen whether we will join them.

For further advice please contact Stuart Duncan on 01635 521212 or stuart.duncan@clmlaw.co.uk

Written by Stuart Duncan

December 23rd, 2016 at 10:57 am

Grounds for Divorce

In October the proposal for no fault divorce was debated in the House of Commons.

Elianne Edgington

Elianne Edgington

Currently spouses can only divorce on the grounds of unreasonable behaviour or adultery if they do not wish to wait for two years (or more) after separating. Adultery must take place between two partners of the opposite sex (despite the introduction of same sex marriage) and must be no less than a sexual relationship.

Unreasonable behaviour is commonly used when adultery is not relevant, but involves listing out details of the other party’s behaviour in writing – not a pleasant thing for the other spouse to read.

Both grounds can cause unnecessary conflict between parties from the outset, leading to greater problems resolving financial issues, increased costs, stress and a detrimental impact upon children.

Many clients believe (mistakenly) that if the other party is the one at fault in the divorce this will impact upon the financial division or arrangements for children.

Although there is the alternative of waiting for two years and divorcing by mutual consent this necessitates a long delay in fully resolving the financial division so that parties are left without financial security for two years and cannot move on.

The idea of divorce without fault is not new and was even enacted (but never implemented) twenty years ago. Unfortunately there are opponents who believe it could make divorce too easy and in some way undermine marriage. I am in no doubt that the calls for reform should be heard and hope this much needed change will finally be brought into law.

For further information contact Elianne Edgington on 01235 771234 or Elianne.edgington@clmlaw.co.uk

Written by Elianne Edgington

December 1st, 2015 at 12:03 pm

No Fault Divorce !

Q My husband and I have fallen out of love and want to divorce.  We’re still good friends and no-one is to blame so can we agree to a ‘no-fault’ divorce?

A. Suzy Hamshaw, family lawyer, Charles Lucas & Marshall.

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

Although the concept of ‘no-fault’ divorce was included in Part II of the Family Law Act 1996, that part of the Act was never brought into force and was recently repealed.  It had been intended that couples wishing to divorce should attend an information meeting (with a view to reconciliation being encouraged  where possible and where not, mediation to resolve issues) but if that didn’t change things then after filing a statement of marital breakdown and waiting for a period of reflection, the couple would be granted a divorce.

Despite its intention to promote reconciliation, the Family Law Act actually provoked an outcry that it was undermining the sanctity of marriage and making divorce too easy.

As a result we are, for the time being, left with the Matrimonial Causes Act 1973 which sets out the basis for divorce in England and Wales.  Contrary to common mistaken belief, grounds  for divorce is not ‘irreconcilable differences’ – it is ‘irretrievable breakdown of marriage’.

Irretrievable breakdown of marriage then has to be proved by one of five facts: adultery, unreasonable behaviour, two years separation where both parties consent, five years separation where consent is not necessary and finally, desertion.  So, to an extent I suppose,  we do have     ‘no fault’ divorce because where there is separation of two years or more (subject to consent), no-one needs to take the blame.

For many couples though who have come to the difficult but mutual decision that their marriage is at an end, two years can seem an unnecessary wait.  In those circumstances the only way to go ahead with a divorce sooner is for one party to be proved to be at fault in a petition based on unreasonable behaviour or adultery.  This however can lead to ‘mud slinging,’ moving us further away from, rather than closer to, a conciliatory approach to family law.

Speaking at the annual Resolution conference in Leeds last month, Sir Nicholas Wall, President of the Family Division claimed that divorce is now an “administrative” process rather than judicial and it was no longer important “to demonstrate you were the ‘innocent’  party”.

In practice, I regularly advise clients that (subject to certain exceptions concerning costs and the nature of the allegations of behaviour) it usually does not matter whether they are the petitioner or the respondent.

In a recent Court of Appeal case where the respondent, Susan Rae fought against her husband’s application for decree nisi, Lord Justice Thorpe said much the same thing as Sir Nicolas Wall.  In this case he felt it was counter-productive  that the minutiae of a 20 year marriage had to be raked over in such a painful way because divorce laws meant one spouse or the other must be shown to be at fault.  Mrs Rae was fighting the decree nisi on the basis that her having moved the television aerial, taken the fuse out of the washing machine and thrown away her husband’s food for his packed lunch should not be sufficient to end their marriage.

For further information contact Suzy Hamshaw at Charles Lucas & Marshall’s Newbury office on 01635 521212 or at the Hungerford office on 01488 682506 or e-mail her at suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

May 18th, 2012 at 11:11 am