It’s Time For Reform

In this article Helen Lucking, family law partner at Napthens discusses why divorce law should be reformed as soon as possible

On 17th May 2018, the Supreme Court considered an unreasonable behaviour petition. The couple had married in 1978 and had two adult children. The wife left the marital home in 2015 and issued a divorce petition on the grounds of her husband’s unreasonable behaviour. The husband defended the divorce, denying the marriage had irretrievably broken down. The wife amended the divorce petition to give details of 27 allegations.

At the court hearing the judge stated that the facts raised by the wife were minor altercations, of a kind ‘expected in a marriage’. He found the husband’s behaviour was not unreasonable. The higher courts upheld this decision as they were unable decide otherwise. The court is bound by the terms of the Matrimonial Causes Act 1973, which is now outdated.

In an age where solicitors are urged to deal with divorce in an amicable way, this case flies in the face of that wish. Successive governments have not found the time or the political will to bring the law in line with reality.

The current law says, unless you have been separated for two years with consent, or five years without, you have to divorce on the grounds of adultery or behaviour. A report from the Nuffield Foundation in 2015 found 60 per cent of divorces in England and Wales were granted on adultery and behaviour. Known as ‘fault based’ divorce, allegations must be sufficient to get through the court – which is at odds with reforms to the family justice system focused on reducing conflict.

Divorce is always difficult but having to show fault can increase animosity between a couple. For many years solicitors have tried to make a divorce petition sufficient to get through court without causing the other party to react negatively. It is much better for all concerned to move on in an amicable way – particularly if children are involved.

Relationships can fall apart with no one person to blame – and the law needs to recognise this. The Government has launched a consultation on proposals to bring legislation into the 21st century, including allowing no-fault divorce.

Family law national body, Resolution, and the Law Society, whilst always careful to say that legal requirements must be met, encourage allegations to be kept to the bare minimum.

It is imperative that divorce law is reformed as soon as possible. Meanwhile, the situation highlights the importance of seeking specialist, expert advice from a family lawyer for anyone considering divorce.

Helen Lucking is a specialist family solicitor and head of the family team at North-West law firm Napthens
www.napthens.co.uk

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