Posted by Simon Bassett, Partner
Positive news for divorce law reform
Despite the country and government’s preoccupation with Brexit, this week heralded good news for the reform of divorce law following the results of a public consultation last year. The Ministry of Justice will introduce ‘no-blame’ divorce “as soon as parliamentary time allows” with the need for evidence of adultery, desertion or unreasonable behaviour to be replaced with a statement of irretrievable breakdown. The changes will also be reflected in the dissolution of civil partnerships.
Overwhelming opinion on the new law, likely to be introduced within three months, is that it will reduce animosity and make divorce a more neutral process. This is widely seen as a positive change especially if there are children involved. As it stands, the requirement to attribute blame for the breakdown of the relationship is rarely a true refection of the situation and the behaviour cited is irrelevant to informing the way judges divide assets in all but the most extreme of cases. It is rarely the fault of one spouse only. The current need to sometimes ‘embellish’ the blame to satisfy the requirements causes problems in itself which can last long after the divorce has been granted. This has long term effects on a divorced couple’s ability to co-parent after they have separated, which can affect their children mentally and emotionally.
In one of the most widely reported cases – Owens V Owens – Tini Owens has been forced to remain in a loveless marriage for five years (until 2020) as Mr Owens continues to contest the divorce. In July 2018, the Supreme Court ruled that Mrs Owens had failed to demonstrate her relationship had broken down irretrievably due to Mr Owens’s ‘unreasonable behaviour’ and must remain married.
In the wake of the Owens decision, there was a temptation for lawyers to ‘beef up’ the behavioural examples used in order to discourage the other party from defending. This had unintended consequences due to the Serious Crimes Act 2015’s introduction of the new offence of controlling and coercive behaviour. This meant that behaviour petitions would often include allegations falling within that offence, leaving respondents with no option but to defend.
Arguments that these reforms will make divorce ‘too easy’ or lead to ‘divorce on demand’ are countered by a new requirement that would establish a minimum six month cooling off period to enable couples to reflect on their decision. The current two stage process known as the Decree Nisi and Decree Absolute will be retained and there will also be an option for a joint application for divorce contributing to a more balanced and equal decision.
At last and largely thanks to the lobbying efforts of Resolution, it looks as though the 50 year old law will be brought into the 21st century. While almost universally welcomed, the next issue to address will be the rights of cohabiting couples. Although they are the fastest growing family structure, most are left with little or no protection in the event of relationship breakdown.
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