LEGAL
Surrey’s Premier Lifestyle Magazine
No-fault divorces at last?
Eleanora Newbery, Senior Associate at Mundays, looks at the prospect of a long awaited change in the divorce law.
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‘No-fault’ divorce in England and Wales is long overdue. On 4 December 2015 a Private Member’s Bill by Richard Bacon MP for ‘No-Fault Divorce’ will have its second reading in the House of Commons. Mundays, like many specialist family law practitioners, believe strongly that it is high time the current divorce system was reformed and is fully supportive of the Bill.
Mary visits us as she and Paul have simply ‘drifted apart’ and do not love each other anymore. Mary says that she and Paul are more like brother and sister than husband and wife. They get on well, but do not have any shared interests or friends and they both feel they would prefer to separate.
What is the problem with the current system of ‘fault-based’ divorce?
To highlight the problems, we will consider the case of Mary and Paul.Mary visits us as she and Paul have simply ‘drifted apart’ and do not love each other anymore. Mary says that she and Paul are more like brother and sister than husband and wife. They get on well, but do not have any shared interests or friends and they both feel they would prefer to separate.
Eleanora also undertakes children cases and can assist clients in resolving disputes about where children will live and who they spend time with in a pragmatic and sensible way. She has particular interest and experience in Child Maintenance Service cases.
Eleanora Newbery can be contacted on 01932 590589 or at eleanora.newbery@mundays.co.uk.
If Mary wants to obtain a divorce, she will have to prove to the Court that the marriage has ‘irretrievably broken down’. This has to be based on one of five facts, being either:
• Paul’s adultery and Mary finding it intolerable to live with Paul;
• Paul’s behaviour being such that Mary cannot reasonably be expected to live with him;
• Paul having deserted Mary for a period of at least two years;
• Paul and Mary having lived separately for two years and Paul’s consent to divorce; or
• Paul and Mary having lived separately for five years.
Mary and Paul are still living together, and Paul has not committed adultery, so the only options for Mary are:
• Wait two years and separate by consent or
• Petition Paul for divorce now on the fact of his ‘unreasonable behaviour.’
Neither of these are particularly attractive options.
If Mary decides to wait two years then it may well be three years until she and Paul are actually divorced. This makes it hard for them to move on with their lives and means they are ‘putting off’ the problem for two years. Further, in the meantime, they may buy other properties, receive inheritance or bonuses, or incur debt. There is then much more scope for argument as to what the ‘matrimonial pot’ is to divide between the parties.
Therefore Mary’s only option if she wants to deal with the divorce now is to divorce on the fact of Paul’s ‘unreasonable behaviour’.
The examples do not have to be too severe but it will be hard for Paul to read these statements about him at his worst. The Petition will also in effect state that Paul caused the breakdown of the marriage, which in this case would be both unfair and untrue. The reality for most marriage breakdowns is that both parties are partly to blame.
We have witnessed cases in which couples have between them spent thousands of pounds arguing over which fact should be used, or about the wording of the examples given. It is all ultimately a waste of money and causes acrimony when actually both parties generally just want to be divorced.
• Paul’s adultery and Mary finding it intolerable to live with Paul;
• Paul’s behaviour being such that Mary cannot reasonably be expected to live with him;
• Paul having deserted Mary for a period of at least two years;
• Paul and Mary having lived separately for two years and Paul’s consent to divorce; or
• Paul and Mary having lived separately for five years.
Mary and Paul are still living together, and Paul has not committed adultery, so the only options for Mary are:
• Wait two years and separate by consent or
• Petition Paul for divorce now on the fact of his ‘unreasonable behaviour.’
Neither of these are particularly attractive options.
If Mary decides to wait two years then it may well be three years until she and Paul are actually divorced. This makes it hard for them to move on with their lives and means they are ‘putting off’ the problem for two years. Further, in the meantime, they may buy other properties, receive inheritance or bonuses, or incur debt. There is then much more scope for argument as to what the ‘matrimonial pot’ is to divide between the parties.
Therefore Mary’s only option if she wants to deal with the divorce now is to divorce on the fact of Paul’s ‘unreasonable behaviour’.
The examples do not have to be too severe but it will be hard for Paul to read these statements about him at his worst. The Petition will also in effect state that Paul caused the breakdown of the marriage, which in this case would be both unfair and untrue. The reality for most marriage breakdowns is that both parties are partly to blame.
We have witnessed cases in which couples have between them spent thousands of pounds arguing over which fact should be used, or about the wording of the examples given. It is all ultimately a waste of money and causes acrimony when actually both parties generally just want to be divorced.
Fraud doesn't pay -
By Graham Coy, Partner and Head of the Family Department at MundaysHeadlines were made in October when the Supreme Court set aside the financial agreements which were reached when Mrs Sharland and Mrs Gohil‘s husbands misled the Divorce Court about their true financial position. Lady Hale delivering the main judgment said the concept that “fraud unravels all” applies to family cases as well as commercial cases and divorcing parties should be subject to exactly the same standards.
The cases will now be reopened and reconsidered. This was a victory for common sense and a defeat for dishonesty – it just goes to show that if you don’t put all your cards on the table when divorcing, it might come back to bite you further down the line.
The decision could open the floodgates for more people to try and renegotiate historic divorce settlements. However, whether the money is still there and readily available for Mrs Sharland and Mrs Gohil is another matter entirely – they could still have a significant struggle on their hands to recoup assets which they are entitled.
For more information, please contact Graham Coy.
The need for change
In April 2014 Sir James Munby, the most senior family judge in England and Wales called for an end to ‘fault-based’ divorce.His view was that ‘no-fault’ divorce would bring some ‘intellectual honesty’ to the process. At the moment a District Judge has to read the particulars and check that the examples show the marriage has irretrievably broken down for the reasons given.
This process seems incongruous with the government’s drive to reduce the workload of the Courts to save costs and time.
Critics have argued that ‘no-fault’ divorce might be open to abuse and divorce may increase, but that has not been the case with other countries which have ‘no-fault’ divorce systems. Our experience is also that couples do not get divorced lightly. The reality is (as it is at the moment) that if one party does not want to continue with the marriage, then it cannot continue. It takes two people to make a marriage work.
The new Bill provides for divorce by separate declarations by each party that the marriage has irretrievably broken down, which would be an additional ‘fact’ on which to rely and would be perfect for people in Mary and Paul’s situation.
A change would bring us into line with many other jurisdictions around the world and allow separating couples to concentrate on their children and on finalising financial arrangements. Our view is that it is high time such a fact was introduced, and we wish the Bill every success.
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Telephone: 01932 590500