According to the most recent Government figures, more than 107,000 married couples were divorced in England and Wales during 2016, a figure which sadly represented an increase of almost 6% on the previous year.
As the law currently stands, there are five bases on which a divorce can be granted, the first three of which are adultery, desertion and unreasonable behaviour.
If the desire for a divorce is mutual, couples that have lived apart for at least two years can apply for a divorce, but if one party does not consent to the divorce, this period is extended to five years.
This latter situation recently came into the spotlight when a woman from Worcestershire was refused permission to divorce her husband of 40 years after he refused to agree to it.
His behaviour was not considered unreasonable enough by the Supreme Court and she was told “with reluctance” that she would have to stay married until 2020, when the required five years of separation had passed.
The attention that this case received and the perceived unfairness of the decision increased calls for a long-overdue reform of the divorce laws, and the government has now begun a consultation exercise which will hopefully make the whole process less confrontational and much more manageable for all concerned.
As things stand, in order to divorce within two years of separation, one party is required ‘to blame’ the other for the breakdown of a marriage, even when there’s actually no blame to lay and a couple have simply grown apart and want to split up amicably.
If adultery is not relevant, then they must provide details of how the other party has behaved so unreasonably they cannot tolerate living with them.
In my experience, this can lead to an overemphasis being placed on what was wrong with the marriage, and sometimes to the facts of the matter being ‘spun’ to get the desired result.
In a situation which is already emotionally challenging, the party being blamed may feel they are being treated unfairly, and acrimony and resentment that was not there when the decision to divorce was taken can quickly build.
This can have unintended, long-term consequences in situations where the divorcing parties will need to have a continuing relationship that is most likely based around their children, and could also impact on the financial arrangements that can be agreed.
After all, it can be hard to reconcile a complaint that one partner behaved unreasonably by always being at work and never at home to help with the children, with any claim to a proportion of the wealth that has been created through their work.
Under the new government proposals, the need to give a reason as to why the marriage has “irretrievably broken down” would be removed, with the applicant simply notifying the court that the marriage has done so.
Divorcing parties would not need to live apart for any set period of time, nor provide evidence of a partner’s misconduct. One or both parties would be able to trigger the new court notification process, and individuals would no longer be able to contest any divorce application made by their spouse.
Concerns have been raised in some quarters that this sort of change could make getting a divorce too easy, and would simply encourage couples to cut their loses too quickly, rather than working together through their problems and giving themselves the best possible chance of saving their marriage.
These have been the same concerns that have played a major role in preventing much-needed reforms around ‘no fault’ divorces being brought in over the last two decades.
From my experience of dealing with hundreds of divorcing couples, I don’t believe that this would be the case, and indeed feel that handing more control to the individuals involved is going to lead to many more better outcomes than is currently the case.
The government consultation closes in December, with a report expected to follow next year. While the emotional difficulties that divorce entails for everyone involved will of course remain, it is to be hoped that the new regime will make the whole process much more straightforward and less confrontational.
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