Teresa Cullen, Partner, Fladgate LLP (firstname.lastname@example.org)
Anna Wakeling, Associate, Fladgate LLP (email@example.com)
Family lawyers have been campaigning for some time for the laws relating to divorce to be changed. Introduced in 1973, the Matrimonial Causes Act which currently provides the basis for divorce, relies on a system of blame. The party wanting the divorce must prove adultery, unreasonable behaviour or desertion and failing that they must wait two years whilst living separately (assuming their spouse consents) or resign themselves to five years separation after which they can apply without the consent of their spouse. It is often an unedifying and artificial charade that taints more than half of divorces.
David Gauke the Justice Secretary has today pledged that the new law, which will be based on “no fault”, will be introduced within three months. There had been growing concern including amongst family lawyers that with the focus on, or some would say distraction of, Brexit the important changes to the divorce law may be overlooked and shelved. It is therefore a relief to see that this part of legal reform will actually take place.
The sad sight last year of Mrs Owens whose image appeared across the media after losing her fight to be divorced from her husband after almost 40 years of marriage and having taken her case all the way to the Supreme Court added fuel to the fire for reform. Even the Supreme Court said that it made its decision to dismiss her appeal “with reluctance”, saying it felt bound by the legislation in place governing the grounds for divorce and said that it was not for that Court “to change the law laid down by Parliament”.
Once the new law comes into play the parties will be entitled to Petition for divorce without relying on blaming each other for how the marriage reached its end. It is understood that the procedure will follow the format we currently have with a Decree Nisi (a conditional Decree being followed six weeks or so by a Decree Absolute or Final Decree). It is also suggested that there will be an enforced waiting time between the issuing of the Petition and the granting of the decree of 20 weeks. In practice, the Court systems are such that this waiting period already exists.
Sir Paul Coleridge (founder of the Marriage Foundation and a former High Court Family Judge) expressed his view that “the current law does not prevent people from getting divorced; it just keeps them in marriages they do not want to be in”.
Resolution, the National Family Lawyers Association has welcomed the Government’s announcement to the new law.
Once this is in place, family lawyers can concentrate on dealing with helping divorcing couples resolve issues in relation to their finances and children without the distraction of the notion of fault. The days of hiring private investigators and couples heading to Brighton to be “caught” in a seemingly adulterous clinch will finally be behind us.