07 December 2018 - Article
Last week, Baroness Hale of Richmond repeated her call for a 'no fault divorce' procedure. It is as long as 20 years ago when she was at the Law Commission that she first made this plea, but it has continued to fall on deaf ears. Her proposal is that there is a year long cooling off period during which financial issues and issues relating to the children are resolved and then the divorce is granted. We all read about the 'quickie divorces' in the newspapers — these are based on either unreasonable behaviour or adultery — ie someone is to blame. Unreasonable behaviour often comes with a long list of allegations as to what that person has done wrong. Family lawyers refer to these as the 'the first, worst and last' incidents within the marriage. All this succeeds in doing is increasing the temperature between those involved in a situation of already heightened emotions. Whilst the majority of family lawyers follow the Resolution Code of Practice and include the minimum information required to get over the Court hurdle of 'proving your case', there are still family law practitioners who do not either, on instructions or otherwise, send the divorce petition to the other party for approval prior to lodging the paperwork at Court or consider the impact of the content of the documentation on the recipient. Quite often, the reality of the situation is that in at least 90 percent of cases, the content of a divorce petition bears no resemblance to the reality of the marriage and why it actually broke down. The content of the divorce petition therefore simply inflames an already stressful situation. To make matters worse we see parties trying to position themselves in advance of the financial or children proceedings by raising allegations of domestic violence or financial secrecy within the divorce petition which that individual then tries to use as a stepping stone towards building their future case against the other party. Legal fees are then incurred unnecessarily trying to reach an agreement on the wording of the document so that both parties will allow matters to proceed. Opposing views from Conservative MPs include the concern that by removing 'fault' this somehow undermines the concept of marriage. In my experience as a family lawyer no one ever takes the decision to separate from their partner lightly, especially if there are children, and often just plucking up the courage to pick up the telephone to a family lawyer can take some people weeks, months, if not years. Something must be done. The process of separation and divorce is painful enough for everyone involved — surely we should be removing as many 'flash points' as possible in order to avoid incurring unnecessary legal costs and facilitate as smooth an exit from the marriage as possible for all concerned? We need to move into the 21st century. We can only hope that once we have a new government in place that this issue will be given some traction. Resolution (The Family Lawyers Association) published their Manifesto for Family Law in February this year supporting the call for no-fault divorce. We need to build on the groundswell that is behind this proposal and to keep up the momentum for change.