Change in divorce law looks set to stop the blame game

The news that no-fault divorce is likely to become law has been welcomed, but what does this mean for couples in the future?  Sam Miles, Family Law Partner, explains what the change in legislation means and why Family Mediation still has a valuable part to play. 

What are the current grounds for divorce?

Under the existing Matrimonial Causes Act 1973, a person must show that their marriage has ‘irretrievably broken down’ by relying on one of five facts:-

• Adultery
• Unreasonable behaviour
• Desertion
• Two years separation with consent of their spouse
• Five years separation without the consent of their spouse

“Adultery and unreasonable behaviour are the most commonly used, most likely because they allow a couple to divorce without having to be separated for at least two years,” begins Sam. “This means that, unfortunately, one party is made to feel like they are to blame for the breakdown of the marriage. Quite commonly both parties will be in agreement that the marriage has broken down but do not want to wait two years before getting divorced. This fault based system can result in there being increased tension between spouses, making it harder to agree on future arrangements for children or finances.”

What would a no-fault divorce be?

In order to remove this implication of blame resting on one of the parties, the proposed changes from the Ministry of Justice include:  

• That the irretrievable breakdown of a marriage is to be the sole ground for divorce.
• Giving couples the option of a joint application for divorce, alongside retaining the option for one party to initiate the process.
• Removing the ability to contest a divorce.
• Continuing to have a two-stage legal process, known currently as the decree nisi and decree absolute.
• Introducing a minimum timeframe of six months from the date of making the petition until final divorce.  There would be 20 weeks from petition to decree nisi and six weeks from decree nisi to decree absolute.

How can Family Mediation help me?

While the new proposals aim to reduce the potential conflict from the current system, the benefits of Family Mediation should never be overlooked.  “For some couples, even this shift will not remove the animosity in their former relationship,” explains Sam.  “Following a divorce or separation, a couple may struggle to agree on arrangements for their property, finances and children, and this is where Family Mediation can help by providing a neutral environment with an independent Mediator to resolve disputes without having to proceed to Court.”

Couples who are in disagreement must consider Family Mediation before proceeding to Court by attending a Mediation Information Assessment Meeting (MIAM).  From this session it will either be determined that the couple are suitable for Mediation and so can proceed, or that Mediation is not suitable and so they must proceed to Court, for example if domestic abuse is a factor. 

Sam concludes, “We are dealing with increasingly complex financial and family arrangements as many couples undertake second and subsequent marriages, often with children from previous relationships.  Even in the most amicable of divorces, it is to be expected that each side will wish to secure the best outcome in terms of asset sharing, but mutual agreement rather than disagreement is the outcome we strive for.  Family Mediation is a more cost effective solution to resolving the differences, and is also more likely to lead to a solution that all parties can agree with; by proceeding to Court, the decision is taken out of your hands and placed in those of the Judge.”

To discuss your options for divorce or Family Mediation, you can contact Sam and the Family team on 023 8071 7431 or email samanthamiles@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.