The news that no-fault divorce is likely to become law has been welcomed, but while the legislation waits for its place in the parliamentary calendar, families must continue to deal with one party being ‘blamed’ for the breakup or wait for the change in the law.
No-fault divorce is likely to be introduced, but in order to reach a fair deal on asset sharing, mediation must remain top of the agenda.
When it comes to divorce there are three main areas which need to be dealt with: the divorce itself, the division of marital assets and any arrangements relating to children. The proposals discussed in this article relate to the divorce process which often sees couples putting the blame on one another when it comes to the reasons for the divorce. This leads to lengthy and costly legal battles which are undesirable for all involved especially where children are involved.
Official statistics show that almost half of divorce petitions between 2016 and 2018 cited behaviour as the reason for ending the marriage, rather than the required period of separation. However, while signalling the likely shift to mutual agreement, the Ministry of Justice announcement sets out plans for a minimum six month timeframe from making a petition until final divorce, so that couples have time for reflection before securing a divorce.
Professionals have welcomed the potential change in the law, saying it will help couples to focus on non-combative negotiations when it comes to agreeing family arrangements or dividing up assets when the marriage ends.
It is usual for the ‘blame-game’ to further inflame relations that are already strained by a martial breakdown. As such, this move is certainly one to be welcomed and hopefully will signal a general shift towards a more conciliatory approach to divorce in future, as there will always be a need for negotiation between couples.
Legal professionals are dealing with increasingly complex financial and family arrangements. Many couples often have marital assets and they undertake second and subsequent marriages, often with children from previous relationships; and moving country for a fresh start is also common. It means that even in the most amicable of divorces, it is to be expected that each side will wish to secure the best outcome in terms of asset sharing, but mutual agreement, rather than disagreement is the outcome we strive for.
Mediation always has been and is an important aspect of the divorce process, particularly where children are involved. Many people do not want to face their ex in a face to face meeting, but mediation it is a flexible process. No one is made to do anything that makes them uncomfortable and having a legal adviser with them helps in overcoming any worries of feeling intimidated or cornered. The main difference with going to court is that the focus is on both sides being happy; whereas the judge has greater discretion and does not have to come up with a solution that everyone likes.
Grounds for divorce under the existing Matrimonial Causes Act 1973 require an applicant to prove their partner is at fault through adultery, desertion or unreasonable behaviour. Alternatively, and only if both sides agree, they can part after two years of separation. If no fault is given, and one party does not consent to the divorce, then the period of separation is extended to living apart for five years. The Children and Families Act 2014 also says that a separating couple must consider using mediation before they can ask a court to sort things out for them; couples are encouraged to attend a Mediation Intake Assessment Meeting or provide reasons as to why attending the same will not be useful.
The proposed changes going forward include:
- the irretrievable breakdown of a marriage to be the sole ground
- the option of a joint application for divorce, alongside retaining the option for one party to initiate the process
- removing the ability to contest a divorce
- continuing to have a two-stage legal process, known currently as the decree nisi and decree absolute
- introducing a minimum timeframe of six months from the date of making the petition until final divorce with 20 weeks from petition to decree nisi and six weeks from decree nisi to decree absolute
However, with the parliamentary calendar full in respect of another divorce – the UK’s departure from the EU – no date has been given for debating the proposed changes.
Web site content note:
This is not legal advice; it is intended to provide information of general interest about current legal issues.