With divorce enquiries on the rise, is it time to change the rules?
Thursday 07 January 2010 by Catherine Baksi
As marriage rates have fallen in recent years, divorce rates have also gone down, but family solicitors reported a massive surge in divorce enquiries from clients in the run up to Christmas and predicted the number of petitions will soar in 2010.
The recession has been blamed for the rise in the number of couples seeking to get divorced because of the extra strain put on their relationships. But it was also blamed for the drop in divorces last year as couples put off the decision to separate due to uncertainty over house prices.
Solicitors have come up with novel ways to help their divorce clients, whether by providing mediation, training in the collaborative law process, offering online services or even divorce vouchers.
But the divorce process itself remains archaic, with one party still required to blame the other before they are able to get a divorce unless they wait for two years.
A briefing note sent by the family law team at London firm Manches suggests that clients are increasingly looking for a ‘better divorce’ in which they no longer have to blame their spouse for the demise of the relationship.
Manches said: ‘Clients are surprised to be told that unless they wait for two years of separation to elapse, one spouse must blame the other for the break-up even when the reality is invariably that they have drifted apart and that both are responsible.’
It said that more than 90% of divorces are based on the ‘fault’ of one of the parties – around two-thirds being based on the unreasonable behaviour of one party and one quarter on adultery.
But, as many others have argued, the briefing goes on to suggest that this necessity to prove fault ‘instils a culture of blame from the very beginning of any divorce’ which ‘sets an unconstructive tone’ that can be difficult for clients to move away from.
The current law on divorce simply makes the process take longer than it needs to and increases the acrimony and animosity that processes like collaborative law and mediation are designed to reduce.
So would the introduction of a no-fault divorce not be the most effective way to reduce this animosity and stress, and enable all parties concerned to move on in a more timely manner?
And after all, there is no requirement for people to live together or be in a relationship with each other for two years before they marry, so why impose such a time period before allowing couples to part.
Comments
No fault and animosity
I see no reason to have to set out detailed grounds for divorce. We all know that just about all of them go through anyway. So I wouldn't be against a "no fault" divorce.
But to suppose that a legal no fault will stop blame is naive. The couple will blame and so will their parents etc, etc.
I think people are surprised they have to set out reasons but that is it, there need be no upset caused by it provided their specialist lawyers help them explain this to their spouse.
So change to no fault by all means but don't expect that to help remove blame and....fault.
No-Fault Divorce - Iain Duncan Smith gets it wrong!
In yesterday's Independent Iain Duncan Smith wrote "the need for less acrimonious and more transparent proceedings in family law highlighted by lawyers in the recent survey is paramount, but no-fault divorce is not the solution. This would undermine marriage and the commitment it involves."
IDS has got it very wrong and it must be hoped that his outmoded views will not influence any future Conservative administration. We at Manches feel that outdated and convoluted procedures do not bolster marriage. No-fault divorce is a "no brainer". In its Twitter page, @ResFamilyLaw, the family lawyers organisation, Resolution, agrees and has stated the position very simply "Divorce isn't easy law needn't make it any harder than it is".
As the leading collaborative lawyer, Suzanne Kingston, has stated in a recent TaleLegalAdvice.com report "England and Wales lag behind many other jurisdictions in not having a mutual consent option or no fault approach which does not involve a substantial waiting period, and it is time it came into line with many other jurisdictions".
In January 2001, following a report on the failed pilot scheme on information meetings for divorcing couples, Lord Irvine, the Lord Chancellor, finally announced that the government would not be implementing Part II of the Family Law Act. With this decision went the last hope of no-fault divorce to end the acrimony caused by divorcing couples being forced to blame each other’s adultery or behaviour in order to get a divorce in under two years. The Labour Government has missed an opportunity to start again and come up with a no-fault divorce system which would have actually worked.
As family lawyers will recognise, clients are often shocked and surprised when they are told that unless they wait for 2 years of separation to elapse, one spouse must blame the other for the break up even when the reality is invariably that they have simply drifted apart and that both are responsible. Over 90% of divorces at present are based on the “fault” of one of the parties — around two-thirds being based on the unreasonable behaviour of one party; and one-quarter on adultery. However, this instils a culture of blame from the very beginning of any divorce and it can be difficult to shift clients from the mindset into which they have been forced. Undoubtedly some people will want to blame the other while emotionsare running high in the aftermath of a break-up, but keeping this old fashioned requirement to record fault on court papers sets an unconstructive tone and puts us out of line with jurisdictions such as Australia and parts of the USA..
Its time to end the blame game. With clients now routinely looking for “better” ways to divorce, in 2010 the time has come to get rid of the concept of fault in divorce once and for all
Resolution campaigning for divorce law refrom
The present divorce system is outdated and fuels acrimony and parental conflict to the detriment of separating and divorcing couples and their children. Divorce is rarely ‘easy’, but the process doesn’t need to make it any harder than it is.
Where a marriage (or civil partnership) has failed, couples should be able to bring it to an end with the minimum distress and conflict. Where there are children, their welfare should be the top priority.
Resolution is actively campaigning for a new divorce procedure ( ‘no fault divorce’) to remove the apportionment of blame from the legal process. A divorce should be finalised where one or both of the parties to a marriage give notice of their decision, supported by information and with the opportunity to explore other avenues, that their marriage has broken down irretrievably and one or both of them are still of that view after six months.
Divorce reform
Iain Duncan Smith approaches this issue from the wrong angle. He maintains in his recent comment article in The Independent – in which he reacts to survey results from TakeLegalAdvice.com -- that ‘unduly easy divorce sends the message that marriage can be treated lightly …’ Therefore, he concludes, removing fault from all divorce proceedings will somehow devalue marriage.
The reality is that any marriage is only as strong as the individual couple involved makes it. If a relationship has broken down – for any of almost innumerable potential reasons – then no amount of sanctimonious moralising about the sanctity of the institution is going to mend that marriage. Professional counselling no doubt is very helpful in some cases – but what is not helpful is telling couples that they will be trapped in a relationship they don’t want to be in for at least two years, unless they wheel out a vindictive round of finger pointing – in other words, playing the blame game.
It is also extremely damaging for the children of couples in a deteriorating marriage to witness that process of dishing out fault. Divorce – and indeed any relationship breakdown – is hugely traumatic for all those involved. We do not need the law to pile on the misery and exacerbate an already painful experience. Society should legislate to try to make the divorce process as transparent and as helpful as possible to couples and families that are going through one of the worst periods of their lives.
Adrian Trotman, Polyview Media, London
easier mutual-consent divorce, not unilateral divorce
The column and comments above make a good case for easier mutual-consent divorce, not unilateral divorce. And they fail to recognise the crucial distinction between the two. A unilateral divorce, whether fault-based or "no-fault", is not likely to be quick or easy, regardless of how short the official waiting period is. Telling couples that such a divorce is quick or painless cruelly offers them an illusion -- it's easy to jump into such a divorce, but it escalates the conflict and makes it long, hard and expensive before it's all over with. People often make their decisions to divorce with little idea of what might happen with child custody, maintenance or property. The fastest way to divorce, officially as well as in reality, should be to collaboratively work out the divorce decision and all the related decisions about children and finances.
John Crouch
Arlington, Virginia, U.S.A.
Practicing international and collaborative family law
Easier mutual-consent divorce, not unilateral divorce
I agree that clients benefit from redirecting the emphasis away from parties' rights and the legal framework for family dispute resolution, and toward the sort of interest-based discussions which collaborative law can facilitate. The trouble is that in this jurisdiction, the fault-based legal framework for divorce is outmoded and cumbersome, it damages families. The collaborative process, still needs to work around some sort of legal structure, it cannot be in anyones interest, least of all the children's, for this framework to be based on blame or fault. This holds true for "unilateral divorce" as it does for "mutual-consent divorce".
I was one of the first lawyers in this jurisdiction to train as a collaborative lawyer and offer collaborative divorce as an option to all of my clients. In my experience, our present fault based system undermines the collaborative process. It is difficult to explain to clients who have decided to opt for a dignified and child centred divorce, that we need to concoct a fault based unreasonable behaviour petition which one party must present to court - effectively blaming the other party for the failure of the marriage.
A Medieval System
An adversarial system run by judges and lawyers is the most inappropriate of all [bar trial by combat, which English divorce and Children Act proceedings seem to be a form of].
The Judges of the Family Court cause a good deal of the problems.
Where one party and their lawyers abide by Resolution codes of practice and follow the court rules and the other does not and plays fast and loose with the rules this leads to injustice.
The Judges have the power to stop much of this but they do not use them.
Just one abuse is where one party has delays evidence and documents to the last minute and does not agree the contents of bundles - presenting the other with a fait accompli to the other's detriment.
It would take trials of only a few cases being adjourned because of these abuses to start to put that kind of abuse right.
And where one party attacks the other in Court on irrelevances, seeking to create prejudice and apportion blame the Judges should step in immediately and stop it, including referring Counsel to the Bar Standards Board. But they do not.
The Judges do not own the process. They do not see the failure of the system and processes they preside over as their own failures. They see themselves as hired by the state and paid to step into a system provided for them to sit in judgement and then go home.
This rather over-reaches the
This rather over-reaches the article's remit of the decree proceedings rather than the layman's term 'divorce' meaning divorce, ancillary relief and the associated issues.
The only sure thing is that defending a divorce is a folly and the sooner the Respondent can accept that the marriage is over the better.
Unless the parties are on speaking terms there would be no benefit to a 'no fault' divorce as there will always be one 'injured' party.
I'm currently doing a
I'm currently doing a research paper on the no-fault and I'm trying to proved that divorce rates are higher because of the no-fault law. Does anybody have any suggestions on some survey questions I could used.