Nov 02

Crying foul: Fault lines in family law

Posted by gowenstevensadmin on Thursday 2nd November 2017

There is an interesting article in the Law Gazette this week which reflects upon the (im)practicalities that divorcing couples in the UK are currently facing. As a member of Resolution the article rang out to me.

To give you some background: at the moment it is not possible to divorce your spouse in the UK without either declaring that there has been a lengthy period of separation or describing what faults your spouse has. The government provided for no fault divorces in the Family Law Act in 1996 however it was never enacted and was in fact repealed by the Children and Families Act 2014; so the law remains as it was set out in 1973 (although it originated as far back as 1969). The article in the Law Gazette, suggests that the current divorce legislation puts those who would like a divorce (without having to wait for a lengthy period of separation) in the uncomfortable position of having to exaggerate or distort the truth to get a divorce speeded up https://www.lawgazette.co.uk/law/couples-lie-about....

The article comments on a report by the Nuffield Foundation on the current divorce regime and the issue of “fault” or to put it another way the lack of no fault divorces in the UK at this time. That report suggests that a weakness of the existing law is that it basically forces a person to list examples of their spouse’s terrible behaviour. Unless the irretrievable breakdown of the marriage is based on a period of separation (of at least 2 years) the spouse wanting to divorce must describe to the court what fault the other spouse has committed. The report suggests people are put in a position of exaggerating or distorting the truth in order to be able to divorce and move on with their life;

Although sometimes done in collusion with their spouse if it isn’t the fully detailed and distorted or exaggerated allegations can cause extreme animosity and hostility to the recipient spouse.

http://findingfault.org.uk/

The current divorce legislation has several critics most notably “Resolution” (of which this writer is a member). Resolution believes that separating couples should be able to preserve some dignity when they decide that they do not want to remain married to their spouse. Some family lawyers will follow the Resolution (and Family Law Protocol) guidance and keep the allegations of unreasonable behaviour as mild as possible to allow the divorce to proceed while leaving the other spouse with some dignity. Not only does the practice of following the guidance enable someone who is already facing a momentous life event save some dignity but it also aims to prevent the relationship becoming more acrimonious than it needs to be. Acrimony can have serious consequences when embarking on a negotiated financial settlement. It is advisable to keep the waters as still as possible before initiating a negotiated financial settlement. Unnecessary acrimony can also add to parental conflict which could cause the children distress. Sadly, some family lawyers do not and will not follow that guidance. The recent cuts to Legal Aid following the enacting of the Legal Aid, Sentencing and Punishment of Offenders Act mean that there are an increasing number of people who are acting without legal assistance and drafting their own divorce petitions. This does nothing to help the situation especially when people read stories in the press about Mrs Owens and the fact the court refused her divorce even though she had listed quite a few examples of what she considered to be her husband’s unreasonable behaviour.

We are still awaiting the listing date for the hearing in the Supreme Court of the Appeal into the “Owens” case. In that case the court allowed Mr Owens to defend a petition which his wife had issued on the grounds of his unreasonable behaviour. Mrs Owens was refused a divorce and her appeal of that decision was rejected even though the Judge commented that he understood the decision would "leave them stymied in lives neither of them wish to lead." To add insult to Mrs Owens he also ordered her to pay her husband's costs. The Judge was applying the law. Many think it is time to change that law.

The case (which includes some of the allegations and extracts of the cross examination) can be read here: www.bailii.org/ew/cases/EWCA/Civ/2017/182.html

An unfortunate outcome of that case is that people may be encouraged to draft petitions with exaggerated examples of the behaviour to avoid being left in Mrs Owen’s position. On a practical note, I always suggest sending a draft of the petition along with a suggestion that further and better allegations will be produced if the petition is defended. I also ask the spouse to confirm whether they intend to defend the petition. A stitch in time can save nine. The law increasingly allows consenting adults to enter into pre nuptial agreements which are intended to be binding upon divorce so why not allow adults the freedom to separate from what they consider to be an unhappy marriage.

I would urge people who find themselves affected by the issues raised in the above post to contact, Aaron on 0208 661 8008. Alternatively email him on aaronomalley@gowenandstevens.com