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Family Law Blog

Comment on divorce & family law 

Divorce in the UK – is it time for a change?

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Divorce history time for a change.

The divorce process has come a long way since Henry VIII but it has been in a fairly familiar shape since the 1960s. Does it need change now though to bring it into the 21st Century?

Divorce law, its origins and how it affects family solicitors today were three of the things I picked up in an earlier blog (Divorce in history – how much has changed?). The response has been so good, I thought I would carry on with my potted history of divorce!

The big changes from what you might term ancient divorce law to a more modern day approach that will be familiar to us came in 1969, when the Divorce Reform Act was passed. It allowed couples to divorce after they had been separated for two years (or five years if only one of them wanted a divorce). A marriage could be ended if it had irretrievably broken down, and neither partner had to prove "fault" any longer. County courts could also deal with divorces for the first time. Then, as recently as 1984, the three-year bar on petitions was reduced to one and, essentially, we have the divorce process that still endures today, which as well as the option of divorce after separation also allows for divorce for desertion (very rare), adultery and the on the grounds of unreasonable behaviour.

No fault divorce

Family lawyers and social campaigners still advocate the introduction of a ‘no fault’ divorce in an effort to assist couples in separating and co-parenting post separation without starting the process with mud-slinging. The Family Law Act in 1996 tentatively introduced a less-fault-based model, with emphasis on attending information meetings and mediation, but this never got off the ground and was eventually repealed. Interestingly, couples must now attend mediation information meetings before starting proceedings regarding finances or their children, but not relating to divorce itself. A more modern and purely administrative divorce process, akin to registering a birth, death or intention to marry, has been mooted but, in my view, would be a massive missed opportunity to take essential legal advice on finances and children issues.

Should you wait to divorce?

As a family solicitor, I generally advise clients that, unless there are solid reasons to wait, divorcing closer to separation makes sense. Two years (two years’ separation is a ground for divorce if you both agree) is a long time and people's financial situations, love lives and families can change hugely in that time, complicating a divorce at a time when people have long since moved on (or thought they had).  Fault-based divorces (unreasonable behaviour and adultery) are still the quickest ways of getting divorced – and, thankfully, the court no longer insists on proof of adultery beyond an admission.

Civil partnerships and, latterly, same sex marriages have more recently been introduced but, instead of modernising family law, have been hitched largely to the same old process (with the notable exception of adultery as a basis for divorce on the premise that no one could quite agree what would constitute adultery).

The treatment of children and finances in divorce

Thankfully, children are no longer seen as the property of their father (or mother for that case) after divorce as used to be the case prior to the change in judicial attitude. And, despite periods in family law where things moved too far the other way, with mothers seen as integral to children’s lives and fathers less so, we now have the emphasis firmly on children’s best interests and a presumption that children will have meaningful relationships with both parents.  Equal time with both parents though, in my view, is to be resisted largely because it, once again, risks treating children like property to be divided up and deposited to suit adults’ needs and wishes rather than their own.

For years, there has been an emphasis on financial contributions and simply meeting the essential needs of the less wealthy spouse (usually the wife). However, there has been a seismic shift away from how financial settlements were approached in the mid-1990s, with the concept of sharing entering into play and the principle that home making contributions are as valuable as financial ones becoming enshrined in our law. A far cry from married women being forced to surrender all of their own property to their husbands on marriage! That said, shorter marriages are still dealt with pragmatically. Focusing on needs in cases where assets are limited and children are small means the law can protect children and families post separation.

Time for divorce to change

Divorce is now widely available to ordinary folk – well, those who can pay the ever increasing court fee at any rate. With very limited Legal Aid available for family cases, does the simplification of the process make any real difference for people who will remain in unhappy marriages (or leave with disadvantageous financial settlements and children arrangements) because they still cannot afford a divorce?  And with the number of unmarried couples living together doubling since the mid-1990s, is it time we focused on proper laws regulating real families rather than tinkering further with the divorce process?

Kathryn McTaggart
Divorce & family solicitor, Cardiff

Comments

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Excellent article by Kathryn McTaggart!

On the matter of the “children’s best interests and a presumption that children will have meaningful relationships with both parents” - whilst this presumption is welcomed, it seems that there may still be some work to do regarding the practicalities of making it work.

The above presumption should reflect the norms of life, in the context that, although the adult relationship has ended, the parent relationship continues; thus, the responsibilities for parenting continue to be shared by the parents beyond separation, although this might not necessarily mean equal time. 

In this vein, introduction of a post separation parenting framework outlining the apportionment of time in the median case, as a benchmark or negotiating start point ‘as a minimum’ should be enshrined in statute. Thus, cases consisting of ‘no child issues’ never reach the court door - being dealt with by mutual agreement between the parents; or, with the help of professional early intervention via mediation; or resolution via collaborative law firms. This approach would ensure that any case where there is no reason to limit or deny a child’s time would not reach the Court - and where it does, the courts need to take a firmer line with intransigent parents. Court lists would be slashed – and the first Hearing would invariably become the last hearing.

Latterly, the Court Service should explore the option of therapeutic support services, in cases where a parent’s decision making is perhaps temporarily impaired by divorce trauma. This would certainly benefit the child, and the longer term relationship between parents. Professionals must ensure that appropriate measures are in place to ensure that alienating behaviours are quickly nipped in the bud early on.

Essentially, a post separation parenting framework would ensure that parents, mediators, solicitors, court support services and the Judiciary would be ‘on the same page’ concerning outcomes for the child, at every stage of the dispute. (Other countries that already take this stance have parents that are ‘court phobic’ and non-court solutions are considered the norm.

For cases that do reach the Court one major stumbling block is, and always has been, Cafcass. Service can be a lottery, with staff operating blind in its present form. Simple disputes are all too often needlessly protracted by misleading reports. Without such a post separation parenting framework, or similar, it serves no useful purpose - and should either be properly reformed as originally intended by its first Chairman, Sir Anthony Hewson, or disbanded; given that it has no guidelines, thus no proper training, no awareness of PA, and no proper complaints procedure. Given the weight placed by the Judiciary on their reports and recommendations, It is scandalous that Cafcass is entirely unaccountable for the quality and content of its secret reports with life changing ramifications for tens of thousands of children. (Anyone who has attempted to raise a complaint will doubtless be aware that they are fobbed off with lies and evasions, or no response at all).

Although there have been many worthwhile changes made concerning divorce - children may not benefit from such until a post separation parenting framework is installed. This is one area where we are woefully behind other progressive countries that have taken this course. Divorce is tough enough on children, but without the changes outlined above, that could readily fit into the existing system, children will continue to be failed and the worthy sprit of the Law undermined. Conversely, its installation would bring about timely resolution via mediation or collaborative law as the services of choice.

Establishing such a ‘framework’ would not only ensure children’s arrangements being resolved early on via non court solutions would become the norm - but would also influence social change, which in the long-term can only benefit both children and society.

By Kenneth Lane on Thursday January 29, 2015

Thank you so much for the time to comment.  I think the idea of Court related therapeutic support services is woefully under explored.  Many would say it not the role of our justice service to provide the same but I think to ignore that many people’s decision making abilities are impaired by divorce trauma as you say (we are requiring people to make what are probably the most important decisions of their lives at a time when they are least able to make them) is to be wilfully blind to not only the extra pressure this puts on a Court system that deals most clumsily with emotions but also the likelihood of obtaining poor outcomes for the vulnerable, particularly children.

By Kathryn McTaggart on Wednesday April 22, 2015

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