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Family Law Blog

Comment on divorce & family law 

Time for divorce law overhaul

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A recurring issue in these musings from me is the need for a rethink on some of the intricacies of family law. Whether it is perhaps another look at mediation, a no fault divorce or pre-nuptial and living together agreements getting full legal status, there are things I see in our daily dealings that I think could be better served by the law.

So it was nice to see a High Court judge coming out and articulating why our “outdated” divorce rules had fuelled the rise in marriage breakdowns and need a rethink. Sir Paul Coleridge points out that the rules we still use were drawn up in the 1950s, when family life was unrecognisable from today, and millions of children may have suffered as a result. You can read the full story in the Telegraph here.

His comments, which also suggest successive governments have ducked reforms that might be politically contentious, came as the Centre for Social Justice said the Coalition Government had done almost nothing to address family breakdown. So what more will it take to get this looked at? Judges are calling for it, there is case law on pre-nups, think tanks are saying it, campaigners are saying it, lawyers want it. What more do we need to do to get divorce laws dragged into the 21st century from the conservative era of the 1950s?

More than 126,000 couples divorced in the UK in 2009, so it is fair to say that the laws covering divorce affect a lot of people in this country. They want to be served by laws in this area that are relevant and recent. There are calls from all sectors of society for change.

The Family Justice Review is rolling on like some sort of tanker, impossibly unresponsive and slow, and there are now calls for that to be put on hold as the Law Society voices concerns about taking people out of eligibility for legal aid in many divorce cases, as per proposals. Not a good week for Ken Clarke in all. So here are two starters:

  • No fault divorce – while couples will always blame each other, not having to list reasons for a divorce in documentation can help defuse high-running emotions rather than enflaming anger, leading to more bad feeling, more time to reach a settlement and higher costs in terms of court time and solicitor fees.
  • Pre-nuptial and living together agreements – as long as they are drawn up correctly with both sides taking legal advice in advance, make these legally binding.

At least it’s a start for something new. As Mr Justice Coleridge in the family division of the High Court says, the current law governing divorce and cohabiting is “a dead parrot” and “no longer fit for purpose”.

Andrew Woolley
Family Solicitor

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