Divorce Laws have not changed for 50 years and yet the make-up of the traditional family has altered dramatically within that time. A long-awaited reform is at long last on the way potentially doing away with the element of blame.
Justice secretary David Gauke confirmed his intention that couples wishing to divorce should benefit from a less confrontational process. A new process will allow people to notify the court of their intent to divorce, whilst removing the opportunity for the other spouse to contest it. This would avoid the unpleasantness which results from allegations of conduct being made even if they will allow it to proceed.
At present, any person wishing to divorce is forced to blame each other for the marriage breakdown on the grounds of ‘unreasonable behaviour’, adultery or desertion. Alternatively they can prove they have been living apart for a minimum of two years – even if the separation is mutual. If the spouse cannot prove fault or the other party refuses to accept the allegations and contests the divorce, then couples currently have to wait five years before a divorce is granted.
Nigel Shepherd, chairman of the national family lawyer’s organisation Resolution, said that couples are forced “into needless acrimony and conflict” under the current system, “to satisfy an outdated legal requirement”.
The new laws would allow couples to end their marriage as a mature, adult and amicable decision, only having to state, not prove, that the marriage has broken down.
At present, even when both parties agree to get divorced, couples still have to cite one of the five reasons to prove to the court that their marriage is over.
- Unreasonable behaviour
- You have lived apart for more than two years and both agree to the divorce
- You have lived apart for at least five years, even if your husband or wife disagrees
The most common reasons used by couples are those that allow divorce proceedings to start straight away – adultery and unreasonable behaviour.
People will often cite “behaviour” reasons in an amicable split as they do not want to wait for the two-year separation period to pass.
This is one of the key issues – those calling for change insist the current system forces divorcing couples to assign blame in an already painful situation.
Chris Sherwood, chief executive of counselling charity Relate, said “blame needs to be taken out of the system. It’s not about making divorce any easier, it’s about supporting people to get the outcome they want. When people are getting divorced it’s almost always / usually something that’s been long thought through before any legal steps are taken. Having a system that has assigning blame at its heart can, not only, be painful for the couple, but also the children of the relationship.”
Owens v Owens
Changes to divorce laws have long been campaigned for and brought into focus by Owens v Owens earlier this year, when the Supreme Court ruled that a 68-year-old woman should remain married to her husband against her wishes. This case is not exceptional. The couple married in 1978, built a prosperous business together, bought property and had children. However, Tini, 66, and husband, Hugh, 78, have lived separately since 2015.
What is unusual is the fact that Mr Owens does not consent to the divorce and Mrs Owens will now have to wait until they have lived separately for five years to receive her divorce in 2020.
Our Family Lawyer comment
The case has highlighted the antiquated nature of the current divorce laws. In practice, most Courts simply take the view that you cannot force one party to a marriage to stay in a relationship they feel has irretrievably broken down and a common sense approach is applied.
It has long since been the responsibility of the Family Lawyer to encourage the respondent in divorce proceedings to accept the position and allow the divorce to proceed on an undefended basis. However, there have been occasions when a hostile or vexatious spouse, or perhaps a spouse who is unable or unwilling to accept that there can be no reconciliation, is intent in relying upon the letter of the law and proceedings can be protracted for months or even years, resulting in enormous costs and stress for them both.
Therefore, unless there is a workable and reasonable revision to the divorce laws in the near future, we are likely to see an increase in cases like that of Mr & Mrs Owens, especially in a climate where most parties are unable to afford legal representation.
Hellen was involved in one such defended divorce last year when a gentleman came to her for help after fighting through several months of court hearings. It was all because he simply hadn’t understood that saying he didn’t accept the allegations (even though he wasn’t objecting to the divorce itself) were two different issues and it cost him a small fortune to sort out. Hellen had to unravel the mess he’d got himself into, including costs orders being made against him.
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