This ebriefing considers the Government’s proposals for challenges, as set out in Chapter 7 of the Green Paper entitled 'Fast and fair challenges'.
Fans of Radio 4’s ‘The Archers’ will know that long-standing characters, Shula and Alistair Lloyd, are in the early throes of divorce. The hot topic for them and the family law community is ‘where does the blame really lie?’
In vivid, gut-wrenching drama, the scriptwriters have brought us to the topical issue of no-fault divorce. Shula initiated the process because she simply didn’t love him anymore. Alistair was completely oblivious to that fact and said she was unreasonable in thinking so. Cue raking over 20 years of potential unreasonable behaviour – coinciding with the announcement by the Justice Secretary, David Gauke, on 15 September this year, of the Government’s consultation and plan to ‘end the blame game’.
In the year to 2017, there were 110,000 divorces. 3 out of 5 of them cited ‘conduct’ as the reason for the breakdown of their marriage; that is, on the current law, an accusation of adultery or unreasonable behaviour on the part of their spouse. In research by YouGov in 2015, 27% of those initiating the divorce said that they had made up the allegations. This manipulation of the truth for the sake of a legal construct does nothing to preserve the remnant of a relationship, particularly if there are children involved. Not knowing just how unreasonable ‘unreasonable behaviour’ must be, encourages petitioners to throw at it the kitchen sink! This now particularly resonates following the unhappy experience of Tini Mills in the Supreme Court this year who was unable to get her divorce from husband Hugh for want of strong enough reasons.
The Government admits that conduct arguments do not serve the public interest and can be damaging for children; parties ought to be looking forward and not backwards. The proposal is to change the law and remove the fault-based reasons for divorce and replace it with a simple (potentially joint) application process. They will retain the same ground as is currently – that the marriage has broken down irretrievably.
There is also a proposal to remove the possibility of defending/opposing the divorce. Many respondents choose to defend because they object to the reasons given for the marriage breakdown, but still acknowledge that there had been a breakdown. If one party believes the marriage is over, it generally is. In reality, only 2% of respondents last year actively pursued a defence; presumably, legal advice about the cost and prospect of success dissuaded the others.
Alistair and Shula have now come to their senses and agreed on a way forward. It has taken a long time, involved much middle-class harrumphing and soul-searching, but now Alistair will be the Petitioner and Shula will take it on the chin. If the Government implement the proposals for reform, they will be able to petition jointly without raising behaviour (even if it really is Alistair’s fault – his gambling and debt was the final straw!).
For more information
For more information on divorce matters, please contact Elizabeth Wyatt.
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