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Broken heart
November 2018
Reading time 10 minutes
We take a look at how changes in the law could revolutionise the way we approach – and move on from – divorce.

And they lived happily ever after… No, we’re not talking marriage here. Divorce can obviously be a difficult time; conflicting emotions can leave couples feeling vulnerable, drained and angry, quite aside from the logistical challenges they face. Current divorce legislation does not help. The only way for a couple to achieve a divorce in under two years is by laying blame at one person’s door. It is hardly surprising that this can cause acrimony, even in the most amicable of cases. This – often unnecessary – conflict can have lasting implications, not only for the divorcing couple, but for their families, and children in particular.

Brighter futures
Unchanged since 1973, many feel that divorce law, as it stands, is no longer fit for purpose. Thankfully there is hope on the horizon. Changes to the law could bring about a seismic shift in the way we approach divorce. Instead of forcing couples to look back in anger, legislation currently under consultation would focus on enabling them to move on, paving the way for happier, more stable futures. In providing a ‘no fault’ option for divorce settlement, the proposed change offers divorcing couples a ‘third way’, removing the need for blame or a lengthy separation period.

‘In my view, the current legislation is archaic,’ says Chloe Syron of Samuel Phillips Law Firm. ‘It promotes hostility and can be especially damaging for children. The new system sits much better alongside other areas of family law, which seek to minimise conflict and promote resolution. The court’s paramount concern should always be the welfare of any children, but really, divorce law as it stands is far from promoting a child’s welfare.’

‘A “no fault” option would more accurately reflect the needs of modern families,’ agrees Lucy Mead, at David Gray Solicitors. ‘It is really unhelpful to have an added layer of antagonism when a couple separates, which deflects from the more important issues that need to be dealt with such as arrangements for the children. It is particularly important for any children involved that the divorce is settled as calmly as possible and without unnecessary blame being laid at one parent’s door. A change in the law is well overdue.’

A Matter of Time
For many couples, current legislation turns divorce into an unpleasant waiting game. Where a couple do not want to bring fault into the equation, they must prove they have been separated for two years before a divorce can be granted. This waiting period rises to five years where a divorce agreement cannot be reached.

Chloe Syron explains that very few couples benefit from this protracted process. ‘Not many clients want to wait two years before getting a divorce,’ says Chloe. ‘It’s usually the case that both parties want to put the past behind them, and this period keeps them in limbo.’ 
Seeking to avoid this delay, many couples are driven into filing for divorce on fault-based grounds, such as adultery or unreasonable behaviour. Both of these routes are fraught with problems.

‘Adultery can be a traumatic issue,’ Chloe explains. ‘You are claiming that one of the parties has had an affair. Putting that on to paper is going to bring painful feelings back to light. Claiming grounds of unreasonable behaviour can be just as problematic, as the defendant has to pick out the behaviour of the other party and pull it apart so that it essentially passes the divorce test in court. It’s really not easy doing that either, especially in cases of domestic abuse.’

As the law stands, if one half of a couple will not agree to a divorce, the other person is doomed to five years of uncertainty before they can be released from the marriage. The case of Owens v. Owens made headlines earlier this year when the court failed to grant a divorce on the grounds of unreasonable behaviour, stating that ‘it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage.’ The court insisted that the full five-year separation period must elapse, despite the fact that 66 year-old Mrs Owens had already been separated from her husband for three years and claimed the marriage made her feel ‘unloved, isolated and alone’.

Consultation Concerns 
Time can be a good thing of course. While recognising that the current timescales involved in divorce are unnecessarily lengthy, experts feel that it is important that new legislation still incorporates a minimum timeframe.
‘My concern with the consultation,’ explains Chloe Syron, ‘was that it was going to allow parties to get divorced too quickly, without allowing that time to process that the marriage has broken down and reach a financial agreement. In my opinion, it is key that that the consultation paper states that they are still going to have a minimum timeframe.’

Could we be in danger of making divorce too easy? Detractors to the consultation have raised concerns that by making divorce easier, we essentially undermine marriage. 

‘There are critics who suggest that such an option would challenge the sanctity of marriage,’ acknowledges Lucy Mead. ‘In my experience, though, if people have arrived at the decision to divorce, it is not one they have undertaken lightly. 

‘Before we set divorce proceedings in motion, I would always ask whether a couple have explored other routes to resolving things. I ask clients to consider contacting Relate or a similar organisation. Counselling may feel like a scary thing to do but it’s not half so scary as standing in a court corridor waiting for a judge who doesn’t know you to decide what is going to happen in your life. 

‘There are lots of different options for resolving disputes, such as mediation,’ Lucy continues, ‘and it’s often helpful for clients to feel absolutely sure that this is the end of the line. Even if a couple ultimately decide to separate permanently, they will both feel that they have done everything they can to make it work.’

A Step in the Right Direction
While filing for divorce is always going to be an emotionally demanding and logistically complex business, it is clear that the law is on a positive trajectory. ‘Reforming the law and getting the balance right is going to be a difficult task,’ admits Chloe Syron, ‘but the proposals set out in the consultation paper are, in my view, a step in the right direction.’

Despite the inevitable sadness when any relationship breaks down, there is hope that the new, ‘no fault’ legislation, if passed, could enable divorcing couples to look to the future and focus on both their own and their children’s wellbeing, hopefully with happy consequences for everyone. 

Who knows, there may be fairytale endings in sight after all. 

‘Could we be in danger of making divorce too easy? Detractors to the consultation have raised concerns that by making divorce easier, we essentially undermine marriage’

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