Tuesday, March 24, 2009

Proposals for Divorce Reform

A couple of posts below I set out Resolution's News Release regarding their call for an overhaul of the divorce laws. This is a subject close to my heart and I have since read an article in Resolution's monthly Review by National Committee member Nigel Shepherd (left), in which he sets out Resolution's proposals for reform.

Way back in September 2007 I posted about the questionnaires that Resolution was then sending out to members, seeking their views on reform of the divorce laws. Those views have been thoroughly reviewed by the National Committee, which has now 'distilled' them into the following proposals:

1. That Part I of the ill-fated Family Law Act 1996 (which remains valid) should be retained. Part I of course just set out the general principles underlying the rest of the Act, such as that the institution of marriage is to be supported and that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end with minimum distress to the parties and to the children affected. Nothing controversial there.

2. That the (pointless) 'Certificate with regard to Reconciliation' that solicitors have to file with divorce papers, stating whether or not they have discussed the possibility of a reconciliation with the Petitioner (almost always answered in the negative) be replaced by a new 'information statement', confirming that the parties had been given certain prescribed information about counselling, mediation, collaborative law, parenting plans and other local services that could assist them. This seems eminently sensible.

3. That as in the 1996 Act, the divorce process should be commenced by one or both parties filing a 'statement of marital breakdown', which would be followed by a waiting period of six months before either or both parties could file a 'declaration that the marriage has broken down, after which the divorce can be finalised. This is not quite as radical as I had hoped (see my earlier post - I feel that the six month period should not be necessary if both parties consent, although see point 6 below), but would still be an enormous improvement over our current archaic system, which can be the cause of so much unnecessary conflict.

4. That there should be power to abridge the six month period for 'exceptional reason'. Naturally, I agree with this.

5. That there should be no requirement that financial arrangements should be settled before the divorce is finalised, which keeps our system different from other jurisdictions where there is such a requirement. However, as before, there should still be power to hold up the divorce for 'good financial reason', although thankfully the power to prevent the divorce completely is considered unnecessary, in view of the introduction of pension sharing.

6. That whilst there should be no requirement for the parties to be separated, where they have been separated the waiting period should be reduced by the separation period. Accordingly, there would be no waiting period at all if the parties had been separated for six months. This seems quite sensible to me.

7. That, unlike in the 1996 Act, there should be no extension of the waiting period where there are minor children or one party objects. I certainly agree with this, which should keep the process at least relatively short.

8. That judicial separation should be retained. Why? In the 21st century, for a court to state that you are still married but judicially separated is completely meaningless.

As Nigel states in his conclusion: "None of us should under-estimate how difficult it is going to be to get a government of any hue to take on reform of our substantive divorce law". Quite. Nevertheless, that should not stop us from trying to bring our system up to date, and in line with the current zeitgeist.

6 comments:

  1. Hi John

    My knowledge of family law is sadly out of date so it was interesting to read this post. Just by coincidence, on a related subjedct, have a look at the article in today's Independent called "Love, Honour and Annoy" - how celebs go about divorcing and why. The main focus is on the need for unreasonable behaviour to be cited if the parties want to get divorced asap, giving rise to soem bizarre reasons being cited in the petition. I remmebr from my days as a family lawyer putting in some pretty weak reasons, such as "the Respondent lacks love and affection for the petitioner" and "doesn't wipe his feet when he comes in the house" etc.

    Best regards

    Michael Scutt - Jobsworth

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  2. Hi Michael,

    Thanks - I'll have a look. I've seen many weak behaviour petitions in my time - it really brings the current law into disrepute, which is another reason for reform.

    So, you escaped the clutches of family law - lucky you!

    Regards,

    John.

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  3. One of the reasons for petitions havign such silly reasons cited within them (as I discovered) is that there is an inherent desire in the system to keep things as anodyne as possible.

    This is ofcourse an oxymoron by its very nature but the court process being what it is, it would seem that expediency is often prioritised over truth, so it is not always the case that the reasons given are the inherent or seminal reasons.

    The upshot of all of this is that the most significant reasons are not put down in the petition.

    So the law must decide: truth or dare?

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  4. Hopefully, we will have a no-fault system in the not-too-distant future, in which case these matters will be a thing of the past. My experience is that all but the most pedantic DJs will let weak behaviour petitions through. While I have no problem with that, it does rather bring the system into disrepute, as I indicated above.

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  5. I agree; it seems to make the process a little redundant.

    It will be really interesting to see if the no-fault philosophy can embed itself in an adversarial system. It's a fascinating gambit of sorts.

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  6. Well, I certainly have no illusions that it would put an end to animosity, but it would certainly be a step in the right direction.

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