As the summer holidays move towards a close there will be marriages feeling the strain of prolonged association and activity and many unhappy people concluding they ‘cannot go on like this’.
But for those married or in civil partnership contemplating divorce or dissolution where does the law stand?
Contrary to common belief the grounds for divorce have not changed in well over 40 years – or rather the ground for divorce as there is only one – irretrievable breakdown of the marriage/partnership – which must be evidenced in one of five ways (four for a civil partnership ) and you cannot make up your own grounds, such as ‘no longer getting on’ or ‘grown apart’.
Couples are still stuck with: adultery (uncondoned- but this does not exist for civil partnerships), or behaviour such that one spouse cannot reasonably be expected to live with the other one’ (usually shortened to unreasonable behaviour), or 2 years’ desertion (rarely if ever used as highly technical) or 2 years’ separation with consent (once popular, but less so now as people want to move on in their lives rather more swiftly) or 5 years’ separation without consent (few wait that long these days).
In practice most petitions are based on adultery or unreasonable behaviour, but whatever the assertions provided they are unopposed and satisfy the court’s scrutiny – they as a general rule have no effect on the outcome of the ancillary applications relating to children, houses or money. In cases where there has been domestic violence of any sort more detail is often given to support a claim for an injunction or where there is a dispute over children’s welfare, but conduct has to be exceptionally egregious before it has any bearing at all on the outcome of a spouse’s or partner’s claim for a financial remedy. The courts simply turn away from any such investigations except in the most extreme cases and those accused of unreasonable behaviour simply let petitions go through whilst stating in correspondence that such accusations are untrue and not accepted in order to save face or preserve their technical legal position.
Those served with an adultery petition have to tick a box and sign to say that they accept the assertion, but that is all. No co-respondent need be named and no point would be served by dragging one into the spouses’ dealings with each other.
But if there is no nexus between conduct or adultery cited in a petition why is it cited at all? The short answer is that it is a left over, even though somewhat watered down, from a past age and it now serves no central purpose, at least as far as the courts are concerned.
Not surprisingly therefore there have been many recent and increasingly noticeable stirrings for reform of the law on relationship dissolution to make it ‘no fault divorce’. This has been led in particular by Resolution, an organisation run for and by Family solicitors, which lobbied all major parties in the run up to the last election asking them to include No Fault Divorce in their manifestos. Labour did so, while the Conservative party was the vaguest. The Ministry of Justice may be beavering away on the subject but there is no evidence of this and no new family legislation planned save that on improving the arrangements for the hearing of domestic violence cases… but that’s another story.
So what lies ahead with impending Brexit and the Repeal Bill? The Government set out in the Queen’s Speech that they will try to ensure that the same rules will apply ‘wherever practicable’. It is unclear in family law, as in other areas, how this would work and this is particularly important as these days so many family issues, including divorce, straddle different countries and jurisdictions. Whilst at present we have common rules such as on where divorces can be instigated, on various legislative aspects of financial claims and on dealing with disputes, it is far from clear what will happen when we have to move away from EU law and fall back on various unwieldy international conventions – presumably with no oversight from a court such as the EU Court of Justice (CJEU) so unloved by the Brexiteers.
At particular risk are all the laws relating to child abduction and maintenance – both areas where enforcement is a central issue. Whilst enforcement of court orders on family law can at present be dealt with speedily across the borders of EU countries with reciprocal enforcement in the various UK jurisdictions – often with state assistance – if these facilities are effectively lost on exit from the EU it will cause real and costly problems for families caught up in relationship breakdown with an international element.
We may not get ‘no fault’, but also no relief.
Eileen Pembridge is a Consultant in our Family team.
If you require legal advice in relation to a divorce or family relationship matters more widely, please contact our team of expert matrimonial solicitors on 020 7631 4141.