Like many family lawyers, I was delighted to hear that consideration is once again being given to introducing a no fault divorce process. Divorce and separation is a very emotional time for couples. Potentially having to ‘throw mud’ at the other party in order to achieve a divorce does not, in my view, ease that especially where they have children who can be caught up in the process.
Under the present law, in order to obtain a divorce without having to explain what happened a couple must wait a minimum of 2 years where the other spouse consents and 5 years if they do not. This is a long time to wait, particularly if there are any financial aspects that need to be resolved. The court has no power to make a financial order until there is a decree nisi of divorce. If the parties are amicable they can enter in to a separation agreement to settle the finances but this has limitations. A separation agreement is not binding on a court and one party might later seek increased financial provision. Under a separation agreement pensions cannot be shared. Pensions can only be shared by way of an order pursuant to a divorce. Consequently, to obtain a divorce before 2 years’ separation, couples have to consider proceeding based on one of the current ‘fault’ options covering adultery or behaviour. Many consider that to now be anachronistic.
This change in the law was recommended by the Law Commission as long ago as 1990. A new procedure was introduced by legislation in 1996. That proposed procedure was drawn out and was never brought in to effect. It is to be hoped that any new law and procedure does not suffer the same fate. There is to be a consultation first. That must not be a way to ‘kick the ball in to the long grass’ while the current momentum and support for change following the recent Owens case dies down. Making divorce a simpler process does not undermine marriage but recognises that it is often one of the most difficult decisions a person has to make in life. Change is overdue and needs to take place sooner rather than later.
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