Sadly, many of us have experienced divorce, either directly or witnessing those close to us go through the experience and know what a traumatic time it is. It has been said to be more emotionally difficult than the grief of a bereavement.
Family lawyers are often seen as profiting from the misery of divorcing couples. In reality, most lawyers working in this area take a non-confrontational and collaborative approach. Many have also been campaigning for change in divorce laws to help ease the pain of divorce. Most family lawyers are a member of Resolution – a professional body who promote a constructive, non-confrontational approach to family law matters.
The current divorce legislation requires that in order to get a divorce, couples must prove adultery, ‘unreasonable behaviour’ or have lived apart for considerable amounts of time. It follows that in order to get a ‘quickie’ divorce, one party must rely on proving fault of the other.
Following the high-profile case of Owens V Owens  UKSC 41 the government is to begin a consultation on introducing ‘no-fault’ divorces. In the case of Owens, the court had rejected Mrs Owen’s divorce petition, stating that the alleged behaviour of her spouse amounted to ‘minor altercations of the kind to be expected in marriage’. Mrs Owens appealed, and the matter made its way to the Supreme Court who do not overturn the ruling of the lower courts and invited Parliament to consider reform of the current law.
Sadly, Mrs Owens remains in a marriage she wishes to leave and will have to wait until the parties have been separated for 5 years to obtain her divorce. However, the silver lining here is that the case has highlighted the flaws in the current divorce legislation.
Quite often the injured party sees the divorce and behaviour allegations as an opportunity to air grievances. The accused party may feel the need to defend themselves and the behaviour. More often than not, the responsibility for the breakdown in a marriage falls on both parties.
The lawyer’s office is not the place for arguments about the relationship to take place and we are expensive counsellors! By the time divorce is considered the marriage is likely to be over and the focus should be on how both parties can best move forward. Having to prove the fault of one party is a negative start to divorce proceedings and does not bode well for discussions about division of finances and child arrangements.
Divorce is never an easy option, whether our laws require fault or not. The proposed no fault divorce will assist in creating a collaborative approach to separation and this can be of particular benefit to any children of the family. Studies have shown that child arrangements made through discussion and mediation are more likely to be kept and the children have a better relationship with the non-resident parent.
The proposed changes in divorce law are welcome and we hope to see the change soon. If you require advice in relation to divorce, our family solicitor, Parul Jhalla, is a member of Resolution and has 30 years’ experience of helping couples through this difficult time. Please contact us for further information.