The third anniversary of the reform of divorce law in England and Wales has just passed.
What is the reform of divorce law?
The reform was to remove the need to wait for a period of separation or to blame the other party to prove that a marriage has irretrievably broken down in order to get a divorce.
As many commentators have said, myself included, this was a welcome change to the law. This removed the need to prove fault (usually bad behaviour or adultery) and made the only ground for divorce the irretrievable breakdown of the marriage. In almost all cases this change simplified the process and made it less expensive. It’s also one that helped those trapped in what became known as “loveless marriages”.
There have, however, been a number of unintended consequences.
What are these consequences?
The first of these is that the process takes longer. An in built period of 20 weeks for reflection, to protect the vulnerable and to enable the parties to resolve issues about their children and in respect of their money only seems in many cases to cause frustration. In some circumstances it’s possible to expedite the conclusion of the divorce but those remain rare, for example in the case of terminal illness where that party wishes to be divorced before they die. Commonly, a straightforward divorce itself will take between 6 and 8 months.
Some commentators have mourned the passing of the ability to attribute blame on divorce. Although in principle I disagree with them, in one respect they have a point.
The point they make is that without the ability to blame the other for the breakdown of their marriage, some people will look to do so in some other way.
We are seeing an increasing number of people who try to use other legal mechanisms on separation to do this.
The most common examples are:
- They seek to include this in financial matters, where it’s known as “conduct”, to try to seek compensation. That’s notwithstanding that the family court has repeatedly said and over many years that conduct must reach an extreme standard to even be capable of being considered and then must still have a material financial effect on the outcome.
- People do still try to include this, despite these warnings. The family court won’t tolerate this and not only are they penalising the offender in terms of costs (making them pay the other person’s costs for disregarding the law and warnings), it also colours how the court views them and the rest of their evidence.
- In children proceedings we see allegations of behaviour or abuse that ought not be made or that are untrue or exaggerated. Here the family court, whilst treading carefully to ensure that the children’s best interests are served and they are not put at risk, is robust in its approach to ensure that children have a relationship with both parents following separation. Like financial proceedings, cost penalties are becoming more common.
- In injunction, proceedings in rare cases where the application is based on untruths or is exaggerated to attribute blame or achieve a financial advantage, such as obtaining legal aid or to influence the outcome of other family proceedings in respect of children or money, rather for the protection of someone who suffered or is at risk of abuse.
In summary, as far as divorce is concerned, it is a “Happy Anniversary” but no matter what the good intentions behind the change in the law were, people will always find a way, whether rightly or wrongly, to address their own feelings of injustice.
How we can help
For more information about divorce, visit our webpage here.
If you would like advice on separation, divorce or financial settlements, please contact the Family Law team on freephone 0800 011 6666 or via email at legal@timms-law.com.
