Tuesday, April 21, 2009

DIVORCE LAWS: FIT FOR A TUDOR KING BUT NOT FOR THE 21ST CENTURY?

I have just received this News Release from Resolution:


DIVORCE LAWS: FIT FOR A TUDOR KING BUT NOT FOR THE 21ST CENTURY?


500 years after Henry VIII became king, divorce laws in England and Wales still need radical reform, a group of family lawyers said today.


As England’s most notorious divorcee, Henry VIII radically altered the religious, political and social makeup of the country in order to divorce Catherine of Aragon. Half a millennium later, with divorce now a common and accepted part of modern Britain, things are a bit easier for couples wanting to divorce, but they nonetheless have to point the finger of blame, or accept the burden of blame in order to get a divorce – something that leading lawyers say is outdated and gets in the way of constructive solutions.

“Anyone not wanting to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of their husband and wife. Although for some couples this is appropriate, for many it simply adds animosity and more heartache to an already distressing process,” said Nicholas Longford, Chair of Resolution which represents over 5500 family lawyers in England and Wales.


“We want to see a radical overhaul of the current system to allow couples who have come to the end of the road with their marriage to divorce amicably and harmoniously without being forced to blame the other spouse.”

Resolution is calling for a new system whereby couples not wanting to prove adultery or unreasonable behavior can divorce on the grounds of “irretrievable breakdown” of their marriage after six months.

Nicholas Longford concluded. “Whilst not quite like the hoops that Henry VIII had to jump through almost 500 years ago, the current system is nonetheless outdated and is convoluted for couples wanting an amicable divorce. We sincerely hope the government will act swiftly and decisively to bring divorce laws into the 21st century. ”

22 comments:

  1. Why stop there? Why not also get rid of the 2 stage nisi and absolute divorce introduced in the 1860s to prevent divorce by consent?

    My problem with the Resolution proposal is that it will do nothing to reduce levels of divorce and almost certainly increase divorce by making it even easier.

    Surely divorce laws should be designed to benefit society rather than divorce lawyers, and easy divorce has done immense damage over the years.

    Another objection is that the breakdown of a marriage very often IS the fault of one party; most divorces are unilateral, instigated by one party calling in the state against the wishes of the other.

    This is a debate raised whenever reforms to divorce law are discussed, but there is a strong argument for making divorce more difficult and for keeping couples together if they have children. If you decide to have children you have made a lifelong and entirely voluntary committment - why should that committment not be extended to the relationship which produced the children, or at least until they are 18?

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  2. Hi Nick,

    An interesting and commonly-held view. I'll agree to disagree with you, save in one respect: I don't accept the implication that Resolution's proposal will benefit divorce lawyers. On the contrary, it should help to reduce conflict and therefore promote settlement.

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  3. At the moment a couple who want to divorce amicably can write their Unreasonable Behaviour allegations together, or at the very least agree on what one of them will put, how will making it easier reduce conflict.

    Even if they get past the petition stage amicably, wait until they start dividing the household possessions.

    Who do organisations always think that the public should be molly coddled and their lives made easier. Divorce is a MAJOR decision in life, particularly where children are involved, and Resolution should be doing everything they can to prevent divorce, not making it easier.

    From my experience, a fair percentage of cases are inflamed and made a heck of a lot worse by Resolution approved lawyers raising the stakes.

    I would admit though that more cases I come across are made worse by men trying to be LIP with little success, but Resolution should clean up its act before trying to make divorce easier by changing the law.

    Swizz

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  4. Actually John, if I can change some of that comment. It isn't Resolutions job to prevent divorce.

    What they could do though is control their members a bit better.

    Swizz

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  5. Hi Swizz,

    Yes, behaviour petitions can be 'agreed', but this often doesn't happen.

    No, it is not Resolution's job to prevent divorce, rather to try to ensure that it is dealt with as amicably as possible. Whether particular members actually follow the Code is another matter...

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  6. Mind we've come a long way since it was easier to get your wife's head chopped off than go through the divorce process. Who knows how many wives Henry VIII might have had if the 1973 Matrimonial Causes Act had already been law in his day?

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  7. Yes, I wouldn't have minded being his divorce lawyer!

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  8. I think we should adopt some of the Scottish system, so couples can have a 1 year separation divorce by consent and 2 year without. It's not a huge change but it will go some way to get rid of the unnecessary fault petitions.

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  9. Yes, I quite like the Scottish system.

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  10. I like that bit of the Scottish system too although personally I didn't benefit from it.

    Just picking up on Nick's comment. Do we actually know who is at fault for the marriage breaking down or who instigated divorce as opposed to divorce proceedings?

    Also many of us struggle for years trying to make things work for our children before thinking of divorce. My ex husband and I both did and my biggest regret is our children, who are now young adults, say it was a huge relief when we separated and they wished we had done it much earlier.

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  11. Well as fault has dissappeared (Wachtel or something), then the vows mean nothing.

    Perhaps I think bind it to contractual law. Having seen first hand (yesterday) the lack of interest or fairness in family courts it's the only way to stop the number of people getting married (and future customers) reducing.

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  12. Fiona: Yes, I'm not sure that I agree with Nick on that one. I certainly don't want to get into the business of apportioning blame.

    Cptn: If you are suggesting that the 'innocent' party should sue for breach of contract, then I'm definitely not with you on that one.

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  13. I’m not entirely persuaded that not apportioning blame or entertaining the notion of breach of contract reduces hostility. The refusal to apportion blame can create huge resentment and bitterness in those who consider themselves the wounded party, and if the courts aren’t prepared to take it into consideration they will then take it upon themselves to do so, through obstructing contact, for example. I don’t have a problem with the idea of accepting that if you breach a contract you should have to face the consequences.

    If you do abandon breach of contract, then logically you also have to get rid of the contract itself. And if you do that, what are you left with? What then distinguishes marriage from cohabitation? People choose to marry rather than cohabit presumably because they wish to make some sort of commitment – to eachother, to the institution, to their children, to society, etc. You cannot make a commitment to something you can just walk away from with absolute impunity: marriage can only be as strong as divorce allows it to be.

    There are two incontrovertible facts: the first is that marriage provides by far the best environment in which to bring up children, and presents children with the best chance that their parents will remain together throughout their childhoods. I suppose you can deny this, but the evidence is overwhelming. Surely there is then a moral imperative to preserve and promote marriage. The second fact is that most people still aspire to marriage, and should therefore be given the opportunity to try it.

    I appreciate the motives behind the liberal approach to divorce, which we might characterise as the Leo Abse view, but it has resulted in a huge increase in divorce and in the numbers of separated, broken families, and damaged, fatherless children. The experiment has been catastrophic. I also appreciate the objections to what we might characterise as the Archbishop Ramsey approach, but with marriage in the state it now is, it is beginning to look more and more attractive.

    Is there a third way? Or do we just give up on the institution entirely and accept a great formless ocean of uncommitted people mixing, merging and moving apart again without responsibility, without liability and without fidelity?

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  14. Hi Nick, well, yes and no. I have kids and divorce has made me happier, despite not wanting it at the time and not having done anything but be a good father.

    I do agree that there should be a valid contract which both sides write and agree to the terms if they break it what the terms are of divorce, this is a pre nup or post nup, I just get a little tired writing the same thing.

    I also agree with putting irretrievable differences down as a cause, although it makes little difference as we have divorce on demand anyway.

    I got a UB petition which was laughable, Judge didn't laugh - maybe he did, but he put it through.

    I am not sure about Fault John, but you lot (divorce lawyers) not liking doing it aint good enough reason not to do it.

    Thorpe said we have a ridiculous situation where fault is what we hand the divorce on but is irrelevant to the settlement.

    Either it is relevant or not, I say no thanks, pre-nups, Nick says yes please, stop the shagging around. I like shagging around.

    You lot sit on the fence, makes me sick. Pre nups or fault divorce, can't have both - bloody idiots. Out argued a barrister all hands down in court Tues, not fun. Don't get me started on Lawyers, must go now.

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  15. pre nups or fault based divorce,you need to have at least one of these or Marriage is meaningless and in terminal decline. I vote for pre nups, Nick for fault I think, but he can speak for himself. I'll wait til pre nups / and post nups before I marry again. Only just survived my first ridiculously one-sided (not mine) divorce.

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  16. I do think it is better for the children that 2 unhappy arguing parents split rather than being forced to stay together for the sake of the children.

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  17. Blimey, I got it right. Wachtel v Wachtel, 1973. When the Family Law Courts lost all credibility or moral high ground with regards to divorce.

    A bit strong, but some stuff on it is here. Does make me angry though and will ensure neither I or my children will be subject to any of this again as it presently stands - (MCA 1973).

    Not mine, so perhaps I am ok to post this, given the weed killer posting.

    http://www.ukmm.org.uk/issues/shame/content.htm

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  18. MCA is Matrimonial Clauses Act, where the primary carer for the children clean up.

    White v White also bad.

    Also pensions being taken into consideration bad.

    So many straws, was a strong back (men doing marriage) to break, but it has been broken sadly as things stand currently imho. Bring in pre-nups asap, before 2012 report. Preferably this spring so I can marry my girlfriend and have children. Must sleep now, ttfn. Did I say bring in pre and post nups ;-) .

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  19. The straw which broke the camel's back, maybe the Child Support Act (another Act where men are liable for money without being at at fault Act). Sick. At least that has been repealled. So much poor legislation. This one I agree with though, so probably won't go through. Who makes the crap law anyways, not anyone I have ever met has ever been asked. Sick.

    (Informed) Rant Over (for now).

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  20. After the rant, back to the point, Henry VIII.

    Princes William and Harry don't seem to be in any kind of rush to get married anytime soon under the present failed 1973 law.

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  21. Two quick points, Cptn Caveman. First, surely it was Allen v Allen in which the family courts lost all credibility and claims to the moral high ground? ;-)

    Second, while your children may have been better off after you divorced, it doesn't follow that all children are. What research evidence there is suggests the opposite: that chldren are actually better off if their parents stay together even in a moderately unhappy marriage. We need to consider the effect on children rather than satisfying the selfish needs of adults.

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  22. Sorry, disagree. Being brought up in a household where the parents argued was no good for me. I was happier when my parents finally got a divorce (peace). I am also happy being a parent now as an nrp. I also think my children are happier then they would otherwise have been. I am allowed now whereas before divorce I was not, or allowed in kitchen.

    The caveat, my ex now trying to stop contact as my children seem to enjoy it too much. Hopefully courts will stop this, if not then you may be right, as things stand at the moment with nrp having good contact with my kids and my gf and her kids is good, or rather not as bad as the fighting when me and ex were together. With regards to the staying together for the children it is a difficult call. I haven't seen objective studies I speak of my own experience (not inconsiderable) and thoughts. Best regards for sticking it to the judges though, the law is not fair in this area, I agree. Bring in pre and post nups.

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