This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
Is divorce reform around the corner?
- AuthorLouise Rhys-Thomas
There have long been calls for a change in the law and the introduction of a ‘no-fault divorce’. This may be something that is now firmly in the mind of the Government as July 2018 saw not only the judgment in the landmark Supreme Court divorce case of Owens v Owens where the husband was represented by our firm [see more here], but draft legislation in the form of Divorce (etc.) Law Review Bill had its first reading in the House of Lords on 18th July.
This is the first step to introducing a new law and a Bill must be approved in the same form by both the House of Lords and House of Commons before becoming an Act (legislation which is acted on in law). The Bill requires Parliament to review the current law on divorce and civil partnership dissolution and to consider introducing a no-fault divorce scheme where one or both parties apply to register the breakdown of their marriage or civil partnership and divorce or dissolution would be granted on application after a nine-month 'cooling off' period. There is no date for a second Bill reading as yet, where members of the Lords debate the main principles and purpose of the Bill.
The law currently allows you to divorce if your marriage has irretrievably broken down and you can prove one of the following supporting facts:
• your spouse has committed adultery
• your spouse has behaved unreasonably
• your spouse has deserted you for two years
• you have lived apart for two years and your spouse consents to the divorce
• you have lived apart for five years
Therefore, at present, separated couples have to wait for at least two years from separating before they can start divorce proceedings without having to ‘blame’ the other person. If they feel that a quicker resolution is better for them and their families, they will have to lay the blame at the other person’s door by proving adultery or setting out examples of bad behaviour. Many commentators and experts agree that the present system causes additional pain and conflict in families during an already difficult time as such reform of the existing system has been called for by top judges as well as organisations such as Resolution and the Marriage Foundation.
Reforming divorce law was last considered by the Government in the mid-1990s when it passed the Family Law Act 1996, which would have introduced a no-fault divorce, but this was never implemented. Whether or not history repeats itself remains to be seen and there will be many hoping that the momentum behind the current Bill is not stalled by the wider pressures on Parliament to include Brexit.
There have been some recent developments under the Government’s court reform process which aims to make the justice system quicker, more accessible and easier to use for all. With the rise in individuals representing themselves in divorce proceedings, the Ministry of Justice has introduced the option of an online application process.
However, irrespective of the ‘speed’ or ‘ease’ of the application process, legal advice at an early stage can assist parties to identify issues that are likely to cause acrimony and issues that could be compromised to reduce conflict and promote resolution.
If you require assistance in relation to issuing divorce proceedings, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.