9 April, 2019
Family lawyers across the country today are breathing a sigh of relief as the government finally bows to public and judicial pressure to end the blame game in divorce proceedings.
Lindsay Halliwell, Associate, family solicitor and mediator considers what this will mean going forward.
What is the current legal position on divorce?
Currently, under the Matrimonial Causes Act 1973, a spouse needs to rely on one of 5 facts to legally end their marriage; adultery by the other spouse which that spouse has to admit on a court form, unreasonable behaviour, 2 years separation with consent of the other spouse, 5 years separation or desertion where the other spouse has deserted you without your consent for a 2 year period.
Why is this such a problem in divorce proceedings?
The issue for spouses who wanted an amicable divorce but who didn’t want to wait 2 or 5 years was that they were forced to blame the other spouse to dissolve their marriage. This wasn’t necessarily what divorcing couples wanted. Raising the subject of divorce with a spouse can be a very sensitive subject and throwing in to the mix discussions about which examples of unreasonable behaviour a spouse should rely upon starts a divorce off on the wrong footing for many.
At a time when family lawyers are more aware than ever of the wider emotional impact of divorce on a family, having to advise a client that they had to point the finger at their spouse before they could divorce was not in keeping with how lawyers wish to practice family law. Many family lawyers are members of Resolution, an organisation of family lawyers committed to non-confrontational divorce, separation and other family problems. Having to advise many clients that their only option to divorce ‘now’ was to rely upon a confrontational fact does not sit comfortably for them.
Research shows that hostility and conflict between parents directly affects their children, often at a time when they’re learning about how relationships work with family and friends. The damage that an acrimonious divorce can have on a child’s emotional wellbeing often lasts well into that child’s adulthood. Starting a divorce from an adversarial position increases the likelihood of a lengthy and hostile process.
Has anything in particular led to the change in the current position for divorce proceedings?
Pressure has been mounting on the government for some time to afford divorcing couples with more dignity through what is often a stressful process. However, there was a great deal of publicity in particular around the Tini and Hugh Owens case last year when the Supreme Court decided that despite Tini’s divorce petition citing allegations of Hugh’s unreasonable behaviour, she had not provided sufficient evidence to support her divorce. The unpalatable result was that the court “reluctantly” ordered the couple must remain married until 2020 when Tini would be able to petition on the fact of their 5 year separation. The Supreme Court Judge, Lord Wilson, suggested that “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce….”
What will changes in divorce proceedings will we see?
The government will be introducing new legislation that will replace the current obligation to provide evidence of a fact of unreasonable behaviour or separation with a new requirement to provide a statement of irretrievable breakdown. Irretrievable breakdown reflects the current sole ground for divorce.
Spouses will also be able to make a joint application if they wish.
Changes to the existing law would establish a minimum 6 month timeframe from the date of the petition to the final decree absolute stage to enable separated couples to “reflect” on their decision and would abolish the ability to contest a divorce, although this is very rare. Whilst the 6 month timeframe may seem like a long time, in reality, divorces tend to take around this length of time in any event but critics may well be unhappy that a set timeframe is being introduced
Parallel legislation changes will be made to the law governing the dissolution of civil partnership.
When will the changes to divorce proceedings take place?
At the moment we don’t know given that the Ministry of Justice has said that new legislation will be introduced “as soon as parliamentary time allows”. It may therefore take some time for divorcing couples to benefit from the government’s decision therefore it is important that legal advice is sought from specialist family lawyers who can advise on ways that the divorce process can be dealt with as amicably as possible, including attending mediation which assists separated couples reach their own decisions relating to financial and children matters.