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Launched back in 2015 to take proceedings out of courts, the Divorce Centres promised a staggering 48 hours turnaround time. In reality, due to staff shortages, it takes six months for cases to reach the decree nisi stage at Bury St Edmunds, the largest centre in the UK.

John Bolch shares his thoughts…

I don’t like to say “I told you so” but… I told you so.

In the last week or so stories have emerged from various sources relating to delays at the largest divorce centre in the country, at Bury St Edmunds.

Unfortunately, these stories come as no surprise to me or, it seems, to many family lawyers, who are now having to struggle to explain to their clients why their divorce is taking so long.

Just to recap for the benefit of those who don’t know, divorce centres were established in 2015, with the aim of streamlining the process of divorce. Instead of having divorces dealt with by some 110 divorce county courts spread around England and Wales, all divorces would be handled by just eleven divorce centres. The primary aim, of course, was to save costs, by using the age-old method of economies of scale: divorces would be churned out on a production line.

Now, despite that choice of words, I don’t have any basic problem with the concept of divorce centres. The worry that I and many others had at the outset was that if a large part of the savings were to come from having far fewer court staff dealing with divorces, there would always be a high likelihood that the centres, or at least some of them, would not be provided with the staff numbers necessary to handle their high workloads.

And so it has turned out to be the case, at least in respect of the centre at Bury St Edmunds.

Let us just take a moment to consider the workload of the Bury St Edmunds divorce centre. It was established to cover the whole of London and the South-East of England, an area including some 17 million people, which used to be covered by about 45 divorce county courts, including the Principal Registry in London, which alone had a very large caseload.

My understanding from HM Courts and Tribunals Service was that Bury St Edmunds would handle about 40% of all divorces in England and Wales, although I note that when she gave evidence to the House of Commons Public Accounts Committee recently Jo Edwards, representing Resolution, put the figure at 45%. Even if we accept the 40% figure, that still means that this one centre would handle a staggering 40,000 petitions a year.

Obviously, in some years that figure may be considerably higher than that – last year some 109,000 divorce petitions were issued in England and Wales, and that was the lowest figure for some years. Back in 2006, for example, the figure was 148,000, which would leave Bury St Edmunds having to cope with some 60,000 petitions a year.

So what has been happening at Bury St Edmunds? Jo Edwards told the Public Accounts Committee that there has been a doubling in the amount of time it takes the centre to process petitions, going from about three to six months for cases to reach the decree nisi stage.

To go into more detail, on the 15th of June the centre said that it was processing petitions received on the 30th of May (when the centres were first established the government claimed that divorce petitions could be handled in as little as 48 hours), and that they were processing applications for decree nisi received on the 4th of May.

It gets worse. The judiciary was processing applications for decree nisi received on the 19th of April. The Judiciary would then take approximately 29 days to deal with them, after which the administration staff would then process the decision within 28 days. If the application was granted a pronouncement date would be set for a further 4-5 weeks on from processing.

The reason for all these delays? You’ve guessed it: staff shortages.

Susan Acland-Hood, CEO of HM Courts & Tribunals Service, responded to the figures on Twitter with this:

“We know this is not good enough – we have been short of staff in Bury, but should have picked up the issues earlier – we are now using the extra staff (and help from other divorce centres) to sort this, and you should start to see improvement soon.”

OK, that’s good to know, and let us hope there is a significant improvement, although it’s worrying that HMCTS didn’t pick up the issue earlier, particularly as it was just what so many of us were concerned about at the outset.

Meanwhile, people across London and the South East are having to wait twice as long for their divorces. That may not seem too much of an issue, but as Jo Edwards pointed out to the PAC, those people may not be able to access financial remedies for all of that time, causing real hardship.

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I’ve commented here previously about one of the features of the modern family: it and its members can cross and re-cross international boundaries with a frequency that would have been considered a rarity just a generation or two ago. This can obviously lead to complications in family disputes, particularly relating to the issue of jurisdiction, i.e. which country’s courts should deal with the dispute.

And these things can matter. The classic case of a jurisdiction dispute involves a wife arguing that her divorce should take place in England, as the English courts are believed to be more generous to wives when it comes to finances than the courts in many other countries. We are not told of the motives of the wife in the recent Court of Appeal case Kelly v Pyres for seeking to have the divorce case take place here, but the issue clearly mattered greatly to the parties – so much so that they spent four days arguing over it at the original trial, before the husband took the case to the Court of Appeal.

I actually wrote a post here about that original trial, albeit the post being in the somewhat unusual format of an imaginary interview between the trial judge Mr Justice Cobb and Jeremy Paxman of BBC’s Newsnight. To save readers the pain of reading that post I will briefly set out the essential facts of the case again here.

The husband was born in India. He came to England in 1957 and lived here until 1995. The wife was born in England of Irish parents, but she grew up in Ireland. In 1995 she moved to Manchester to study for her Master’s degree, staying in England for 18 months. She then went to work for the European Commission in Brussels, where she met the husband.

At the end of 2001, the wife took up a time-limited contract with a company in London. She spent another eleven months in England, living with her husband in a property he owned in Fulham. She then took up a post in Albania in November 2002. She has not lived in England since.

The parties were married in Italy in 2005, and they have two children. In 2006 the husband moved to Bosnia, and in 2009 the wife also moved to Bosnia, where she lived with the husband.

The marriage broke down in 2015 and the wife issued divorce proceedings in London in July that year. The husband claimed that the English court did not have jurisdiction to hear the case.

The wife claimed that the English court had jurisdiction on the basis that she was domiciled in England and Wales (as I explained in my earlier post, where a person is domiciled is essentially the country that that person treats as their permanent home). Even though she had not lived here since 2002, she said that England was her ‘domicile of choice’, in that she had retained links with England, and had never considered any other country to be her home.

Mr Justice Cobb agreed that she was domiciled in England and Wales, which meant that she was entitled to proceed with her divorce suit here. The husband appealed against the decision.

Giving the leading judgment of the Court of Appeal Lady Justice King held that Mr Justice Cobb had erred in finding that the wife had acquired a domicile of choice. To do so she must have an intention to reside permanently or indefinitely in this country and must have acquired that intention whilst she was resident here. There was no evidence that the wife had acquired that intention in either of the two periods during which she was in this country.

Accordingly, the appeal was allowed. The wife was not domiciled in England and Wales, and could not, after all, proceed with her divorce suit here.

You can read the full report of the Court of Appeal’s decision here.

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Another week in family law passes and this week I have noted a number of articles and research on domestic abuse in the UK today. It’s also been another week of reform calls and a very sobering insight into the reality of the current court modernisation process. Here are my thoughts…

ONS examines data on partner abuse

Firstly, as I reported here, the Office for National Statistics (‘ONS’) has published an article examining data on ‘partner abuse’ in the UK from the last three years, to help develop insight into which women are most at risk of experiencing abuse by a partner or former partner.

Amongst the ONS’s findings were that young women were more likely to have experienced abuse in the last 12 months than older women, that women living in households with an income of less than £10,000 were more than four times as likely to have experienced abuse in the last 12 months than women living in households with an income of £50,000 or more, and that women living in social housing were nearly three times as likely to have experienced abuse in the last 12 months than women who were owner-occupiers.

Perhaps not entirely surprising findings, but hopefully useful in the fight against the scourge of domestic abuse.

Breaking the cycle of domestic abuse

Secondly, the children’s charity Barnardo’s has warned that the government is failing to see the full picture of the effects of domestic abuse on children, including its significant impact on children’s mental health. In its response to the consultation on the Domestic Abuse and Violence Bill, Barnardo’s says children affected by domestic violence and abuse need specialist services to help them deal with trauma and have the chance to lead healthy and happy lives.

Research by Barnardo’s shows that children in families where there is domestic abuse are often also vulnerable in other ways and can be affected by the experience for the rest of their lives. Barnardo’s says that not enough is being done to address the trauma children have suffered and the long-term impact abuse has on their lives. More needs to be done to break the cycle of domestic abuse, they say, as children who are not supported have a high chance of going on to be perpetrators or victims themselves. Agreed.

Make a stand

The third domestic abuse-related news story comes from a slightly unexpected source. The Chartered Institute of Housing (‘CIH’) has reported that more than 50 housing organisations have signed up to its ‘Make a Stand’ domestic abuse pledge.

The pledge, which was developed by CIH in partnership with the Domestic Abuse Housing Alliance and Women’s Aid, consists of four commitments which housing organisations can make to support people who live and work in housing who are experiencing domestic abuse. These include putting in place a policy to support residents who are experiencing domestic abuse and to make information about national and local domestic abuse support services available on the organisation’s website and in other places which are easily accessible to residents and staff. Sounds like an excellent initiative.

Change is needed in family law

Moving on, Sir James Munby, the President of the Family Division, has called for the creation of “a one-stop shop in an enhanced re-vamped family court capable of dealing holistically, because it has been given the necessary tools, with all a family’s problems, whatever they may be.”

In a speech at the University of Liverpool he outlined four problems with the family courts as they are currently structured, including the fact that they do not deal with the underlying problems that lead to the cases coming before them and the fact that the family courts do not communicate and liaise with the courts of other jurisdictions, such as the criminal courts, which deal with the same families.

He suggested that the solution to these problems was to create a ‘one-stop shop’ which could deal “holistically with the family court’s traditional concerns with status, relationship breakdown and family finances; more widely, and ultimately more importantly, dealing holistically with all the multiple difficulties and deprivations – economic, social, educational, employment, housing and health (whether physical or mental) – to which so many children and their families are victims.” An interesting idea, which we will no doubt be hearing more of in the future.

A worrying picture of court modernisation

And finally, Resolution, the association of lawyers and other professionals who deal with family disputes, has given evidence to the House of Commons Public Accounts Committee, which is carrying out an inquiry into the benefits of the court’s modernisation programme.

As I explained here, Resolution’s evidence paints a very worrying picture of few or no benefits from the programme, delays and poor customer service from the courts, and court closures not being balanced out by improved efficiency and facilities in the remaining courts. They fear that the family courts are edging ever nearer to the breaking point. As I said, let us hope that the Committee take these points on board and that the message, in turn, is passed to HM Courts and Tribunals Service.

Have a good weekend.

If your partner makes you feel threatened or anxious or you are in an abusive relationship please do seek advice. The National Domestic Violence Helpline is open 24 hours a day and can be reached on 0808 2000 247

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Resolution paints a worrying picture of court modernisation programme

As regular readers may be aware, HM Courts and Tribunals Service (‘HMCTS’) is currently carrying out a range of reforms to introduce new technology and modernise the justice system. The reforms include using online services and video technology to reduce demand on courtrooms.

A recent National Audit Office report found that the scale of proposed changes to HMCTS present a challenge and that HMCTS has so far made less progress than it originally planned, with costs increasing whilst benefits have decreased. The modernisation programme has come to the attention of the House of Commons Public Accounts Committee, which is carrying out an inquiry into the benefits of the programme and whether enough progress has been made so that it delivers value for money.

As part of the inquiry, the Committee has invited written evidence from interested parties. One party to submit such evidence is Resolution, the association of lawyers and other professionals who deal with family disputes. Their evidence (which you can read here) paints a worrying picture of the modernisation programme. Here are some extracts:

“Resolution supports the aims of the Ministry of Justice/HMCTS to provide a reformed system that works better for all users, uses court time more proportionately, and makes processes more accessible to users.”

However:

“To date, we don’t consider that those aims have been met and our members as end users are yet to really feel any benefits on the ground for themselves or their clients. Whilst we hope that the reform programme will deliver benefits for family court users, we, as an organisation, and our members currently lack confidence (partly due to their experience of divorce centres introduced from late 2014) that it will do so, and any benefits are yet to be strongly evidenced. In the meantime, we are seriously concerned that the family courts are edging ever nearer to breaking point.”

The modernisation programme involves the closure of many courts, about which Resolution says this:

“Amongst our many concerns, we have always been concerned by the lack of reporting on the impact on and capacity of courts receiving work from closing courts, as well as what resources they might need. It is disappointing that we are led to believe that, on top of capacity issues in current provision, further court closures affecting family court users are likely to be proposed. Without proper analysis of the effect of the court closures so far, and the extent of need for face to face hearings in the family jurisdiction, we reiterate our concern that the family court will inch ever closer to breaking point.”

Further:

“Whilst modernisation of the court estate is a long-term goal and will take time, we are not aware of any widespread evidence yet that the court closures to date have been balanced out by improved efficiency and facilities in the remaining courts.”

And:

“The experience of our members does not currently indicate benefits realisation on the ground from the end user perspective or that the aims are being fully or evenly partly met.”

It gets worse:

“…the overall flavour of ongoing and recent feedback from our Regional Liaison Committee (representing our members on the ground in our 43 regions using courts across England and Wales) about the courts can largely be themed around delays and poor customer service. For example, pending full online divorce and financial remedy application services, which are some time away, the arrears at the Bury St Edmunds Divorce Centre is a particular cause for concern.

As at 30 May 2018, the centre was processing correspondence and emails received on 17th April; a decree nisi application received in late March will not go back to the parties until late July, with a pronouncement date in late August, early September.”

Not exactly a glowing endorsement of the new system. And Resolution has one more point about the modernisation programme:

“Most importantly, we are unaware of real evidence about the impact to date and potential impact of the programme on access to justice.”

It is remarkable that the effect of these revolutionary changes to our justice system, possibly the most radical ever, is not being fully monitored. All in all, as I said, a very worrying picture. Let us hope that the Committee take these points on board and that the message, in turn, is passed to HMCTS.

Resolution is not the only organisation or person to submit written evidence in connection with this inquiry to the Committee. You can find all of the submissions here (click ‘View all’ to see them all). I have not read all of the others, but I did notice the following.

Firstly, for the sake of balance, I should mention the submission by Professor Liz Trinder of the Law School at the University of Exeter, who has some good things to say about the recently launched online divorce project.

Secondly, the Transparency Project, the charity whose purposes include the advancement of education of the public, particularly in relation to family law, made a good point in their submission. One of the aims of the modernisation programme is to have more court hearings conducted via virtual means, such as video, telephone and online services, rather than in physical courtrooms. The Transparency Project points out that this could impact upon open justice, by leading to significant numbers of proceedings being conducted in effect in private, where they are currently conducted in public.

Finally, I should mention a submission by Mrs Melanie Benn, a criminal defence lawyer. If things are not entirely rosy regarding the modernisation of the family courts, they are certainly far worse when it comes to the modernisation of the criminal courts. I would recommend you read Mrs Benn’s submission (which you can find here), but here is a sample:

“I have been a criminal defence lawyer for 25 years. I can see that I will no longer want to do this job in a timeframe of 18 months to 2 years as I am horrified by the lack of justice that is being done at the moment and the lack of investment which means that none of the agencies I work with can do their jobs properly anymore. Everyone is so demoralised. All the suggested changes will, in my professional opinion, destroy the system that I have tried to uphold for so long. I cannot participate in that.”

Sobering stuff.

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Blogger John Bolch responds to an article in The Times that suggests the Government may finally be taking divorce law reform seriously (although he is proceeding with caution).

We’ve had false dawns before on the introduction of no-fault divorce, most notably the ill-fated Family Law Act 1996 (more of which in a moment), but a report in The Times at the weekend suggests that the Government may finally be getting serious about this much-needed and long called-for reform.

Before I get too carried away with excitement, I should say that the murmurings from Westminster reported by The Times do not exactly indicate enthusiastic support for the reform, just that the Government is putting it anywhere near the top of its to-do list.

Lord Chancellor David Gauke has apparently agreed that the case for change is “strong”, and said that he was “increasingly persuaded . . . that what we have at the moment creates more antagonism than we really need”.

He added: “I don’t think the best way of helping the institution of marriage is by putting bureaucratic hurdles in the way of a divorce” and said that ministers were “continuing to look closely” at the issue.

Clearly, there is still a long way to go.

Still, these are the most hopeful signs for many years that a blameless divorce system may at long last be on the horizon. Of course, we must all continue to press for reform, to ensure that the matter does not slip down the Governmental agenda.

And when (or should I say ‘if’?) the time finally comes that no-fault divorce is at the top of the Government’s agenda, we must make sure that this time it does it right.

I don’t think that a no-fault divorce system need be very complex. In fact, simplification must surely be one of the other beneficial features of such a system.

However, that was not what happened twenty-two years ago when the Government made its first attempt at this reform. As I’m sure I’ve mentioned here previously, I well remember at the time attending a seminar on the new Act, given by an eminent family law expert. Even he confessed to being mystified as to how it was intended to operate. And that complexity was, I think, one of the reasons why the Act (or at least that part of it that related to no-fault divorce) ultimately failed to pass into law.

Obviously, we cannot allow something similar to happen this time, and for another opportunity for reform to slip through our hands, with a further twenty years to pass before the next one arrives.

As I said, the new system can be quite simple. The model put forward by Resolution, the association of family lawyers that has done more than anyone over the years to press for reform, simply involves one or both parties giving notice that the marriage has broken down irretrievably and then, after a period of six months, if either or both parties indicate that they still wish to proceed, the divorce is finalised.

Personally, I think that six months is too long – if the marriage is over, why force the parties to stay in it for another half a year? Would three months be sufficient? And why do we need a set period for the parties to reflect at all? After all, how often does a petitioner change their mind about the divorce? And even if they do subsequently decide that they’ve made a mistake, they can simply re-marry, as some couples do.

Clearly, the exact form of a no-fault system is still open to debate, and as in the nineties, there are likely to be those holding strong views, for example not to make divorce too easy. However, we must not let that cause the reform to get bogged down or, worse still, end up with the sort of fudge we had back then.

Just one final point: we should not expect too much of no-fault divorce. In the quote mentioned above, Mr Gauke speaks of ‘helping the institution of marriage’. The report in The Times also mentions Lady Hale, the President of the Supreme Court, saying that it would ‘strengthen marriage’. I’m not entirely sure that she said exactly that, but she did say in her recent speech to the Resolution conference that attributing blame for the breakdown of the marriage can make it more difficult for the parties to reconcile.

That may be true, but reconciliation after the filing of a divorce petition only occurs in a very small number of cases. No-fault divorce is not about strengthening marriage (just as it is not about weakening it), but about making it less painful when it breaks down.

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One thing about divorce is you are certainly not alone; in fact, 42% of marriages end in divorce in the UK.

And of those divorces, unreasonable behaviour (one of the five reasons you can use to divorce in England and Wales) is the most common with 36% of husbands and 51% of wives using this reason.

Unreasonable behaviour is a ‘catch-all’ term so what really sits behind this broad-brush statistic. Our expert divorce lawyers have given the ten most common reasons for divorce they see in their clients (not listed in any order).

An affair

Cheating is still one of the main drivers for divorce and often a point of no-return. Affairs destroy trust which many marriages cannot survive.

We grew apart

What people need changes. Over time marriages can fade into the background and become neglected. What is neglected, no longer grows.

Money troubles

Not necessarily a lack of money but more about how you choose to spend and save your money. A spendthrift and a frugal saver may face problems.

We don’t talk anymore

Communication is key. However how we communicate is personal. Some people like to talk – some people prefer not to share.  The art is getting the balance right for both people in the marriage.

All we do is argue

To argue or not? Some relationships thrive on regular (non-violent) arguments to clear the air.  Some don’t. The difficulty arises when arguing becomes the only form of communication left in a marriage.

We don’t agree on how to bring up the kids

Parenting is a personal approach, often founded on beliefs from childhood. Differences in parenting can quickly complicate a marriage and become a fiery fighting ground.

Addiction is an issue

Addiction is a disease that has far-reaching effects on the whole family, not just the addict. Many marriages cannot take the impact it creates.

It’s become a toxic relationship

Toxicity is not good for people in whatever format it takes. If a marriage or relationship feels toxic it is damaging to all involved.

Work/friends/family got in the way

Marriages and relationships need attention in a life that is full of distractions. Work, family, friends even an iPhone are all parts of life but when you are at home – focus on being there.

We fell out of love…

Love needs work. You cannot just tell someone you love them. You must show it. Stop showing it and it fades.

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John Bolch shares his views on the case behind the increased calls for no-fault divorce in England and Wales last week.

“Last Thursday the media spotlight was focused on the Supreme Court as Mrs Owens’ appeal against the refusal of the courts to grant her a divorce was heard. This case has led to renewed, and louder calls for the introduction of no-fault divorce in England and Wales.

But what exactly were the lawyers arguing about before the Supreme Court justices? Surely, if the current law says that the husband’s behaviour had to be sufficiently bad as to show that the marriage had irretrievably broken down, and the judge found that it hadn’t, that is the end of the matter?

I suspect that this, or something like it, maybe the view of a lot of people who have been following the case, including many lawyers. To expand the argument, the case is surely just an example of the current law working as it was designed to do, and any change in the law is a matter for parliament, not the courts.

Let’s start with what arguments were put forward on behalf of Mrs Owens. Well, I’ll do that in just a moment, but before I do I think I should quickly set out what the current law says, for the benefit of non-lawyers.

Our current divorce law is set out in the Matrimonial Causes Act 1973, as amended. For the purpose of this post, the relevant law is set out in section 1(2) which says (in relation to divorce petitions based upon the respondent’s behaviour):

“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court … that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”

That seems at first glance to be quite clear – to get her divorce, the petitioner must satisfy the court that the respondent had behaved in such a way that she could not reasonably be expected to live with him. Obviously, the judge hearing the Owens case was not satisfied that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him, hence Mrs Owens was refused her divorce.

Correct? Well, let us see what the lawyers said (the following is, of course, a very brief summary).

It was pointed out on behalf of Mrs Owens that the judge who originally heard the case accepted as a fact that the marriage had irretrievably broken down, but despite that he felt unable to grant her a divorce, as he did not find that Mr Owens’ behaviour was sufficiently unreasonable.
In other words, the law required the petitioner to establish a minimum level of bad behaviour, and it was for the court to judge whether that level had been reached

This approach, Mrs Owens’ lawyers (including the lawyer for Resolution, who were given leave to intervene in the case) said, involved the judge falling into a ‘linguistic trap’ when interpreting section 1(2). The trap was to believe that the behaviour had to be unreasonable, in the view of the judge, rather than unreasonable from the point of view of the effect it had upon the petitioner. If the judge had taken the latter approach, then he would have seen that Mrs Owens found Mr Owens’ behaviour so unreasonable that she could not reasonably be expected to live with him.

Needless to say, counsel for Mr Owens did not accept this. He said that the judge had applied the law correctly, as courts had understood it for nearly fifty years. In any event, if the law was as suggested on behalf of Mrs Owens, that in effect amounted to a system of ‘divorce on demand’, as any petitioner could simply declare that she could not be expected to live with the respondent, and that was clearly not what parliament had intended when the present law was formulated.

At this point, you may be thinking that all of this is a little bit esoteric. Isn’t the only important thing whether or not the marriage has broken down? Well, yes. And, as you may be expecting, I will finish with the obvious point, which must have been like an elephant standing in the middle of the Supreme Court chamber: that all of this horribly intrusive investigation of what should be the private affairs of a couple could so easily be averted by the introduction of a system of no-fault divorce.”

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If you have divorced in England and Wales there is a strong chance that at some point in the process, one of you would have been blamed for the breakdown, be it “unreasonable behaviour” or adultery.

But what if you have just grown apart? Or the children have left home and you don’t have anything left to say to one another?

Should you be able to get divorced when the relationship is clearly over but no one is at fault?

Graham Coy, Partner at Stowe Family Law London office reflects on the importance of no-fault divorce and the impact of the Owens v Owens case.

“In the case of Owens v Owens, Mrs Owens, in her appeal to the Supreme Court today will claim that she is entitled to a divorce despite her husband’s refusal due to being in a loveless marriage and because she believes that he has behaved unreasonably even if he does not accept this.

Lower courts have disagreed with her, finding that his behaviour “was to be expected in a marriage.” Without the consent of the other party, a marriage cannot be dissolved for five years leaving Mrs Owens locked-in a marriage she no longer wants to be in.

There have been calls to introduce no-fault divorce in England and Wales for many years. Resolution, the association of family lawyers and professionals agree that there should no longer be the need to establish some sort of bad behaviour before a divorce is granted.

Family law reform is needed as behind the law is everyday families dealing with their marriage coming to an end and one of the most painful times of their lives. Having to blame the other person to be able to obtain a divorce makes matters more difficult around children and financial issues. The law needs to help people in these circumstances and not matters even worse.

Getting divorced is one of the most stressful times in a person’s life and forcing couples to pick sides exacerbates the situation. Marriage and relationships have changed so much. Divorce legislation needs to catch up.

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A meal ticket for life or a way to protect the financially vulnerable spouse in a divorce? Guest blog writer Julian Hawkhead, Senior Partner at Stowe Family Law, Leeds shares his reactions to Baroness Deech’s Divorce (Financial Provision) Bill.

I must confess that I was a little dismayed at the recent article in The Times outlining proposals for the reform of financial settlements (I am keen to avoid the word award) by Baroness Deech.

The focus on maintenance has been sparked by several high-profile cases which have seen ex-wives awarded large sums despite their ability to return to work. This Bill tabled by Baroness Deech is calling for up to a five-year cap to be placed on most maintenance payments, bringing England in line with Scotland, the rest of Europe and North America.

But is this really a progressive step? Reform should always bring progress. In this case, I feel it does not and the concept is naive. This approach is an attempt to over-simplify what can be a very difficult and vital issue in any divorce settlement. The further suggestion by Baroness Deech is that the better way to deal with the provision of future need is through the provision of greater capital and pension to the financially weaker party. However, experience tells me that in most cases where maintenance is required, there isn’t enough capital or pensions to meet future financial needs and quite frankly a pension is little help to somebody who is in their 40’s and a long way from retirement.

The Times article goes on to say that such reform would encourage mediation and out of court settlement and I agree there is a possibility of this but only because the wife would have no other choice than to expect the law. This does seem to be fair or appropriate.

In its Family Matters campaign, The Times and Marriage Foundation are urging an overhaul of the divorce laws to make them fairer. Recent high-profile cases including Waggott v Waggott has led to debate about eye-watering costs when settling maintenance awards. But eye-watering costs are incurred by people who have eye-watering amounts of money. For the everyday cases, that affect people up and down the country, there are simply not the assets to battle over.  Divorce requires compromise from most people to avoid legal fees and long-contested cases that they can ill afford. If you set a hard and fast rule as Baroness Deech is proposing, it is going to create cases of real financial difficulty. This could well lead to greater dependency on the state, a need that will then have to be funded by the tax payer. Which is better? For husbands to be paying maintenance for longer than they would like or the tax payer to be paying for the cost of divorce?

I agree that we need reform and accept that any uncertainty is a fertile ground for dispute. However, there is a real risk in over-simplifying the law and creating unfairness and potential financial difficulties. No divorce is the same so to apply a global cap of five years for maintenance will not ensure both parties needs are met reasonably or that their contributions to the marriage are fairly reflected.

We certainly have a lot to do. In the meantime, I end with a different suggestion for maintenance to avoid “open-ended” maintenance awards or what some, in my view unfairly, call meal tickets for life.

How about a rule that maintenance should not exceed longer than the length of the marriage (i.e. married for 5 years, maintenance lasts no more than 5 years) or their youngest child ending their financial dependency (usually 18). It’s not perfect but it’s a starter for ten. I’m happy to put the suggestion out there for debate. The right answer however is to look at the law concerning financial settlements on divorce as a whole and not on a piecemeal basis.

The bill has its second reading on May 11. I’ll wait to see what happens.

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At midday on Sunday the tranquillity of my bank holiday weekend was disturbed by an email from GOV.UK. There’s clearly no peace for the wicked. Clicking the link in the email I was taken to a press release from HM Courts & Tribunals Service, the Ministry of Justice, and Lucy Frazer QC MP (the latter being Parliamentary Under Secretary of State at the Ministry of Justice). The release breathlessly announced that: “The stress of applying for a divorce could be eased thanks to a new online service that removes the need for paper forms.”

The service, of course, is the new ‘fully digitised’ divorce application, which was launched on the 1st of May and which enables the whole divorce process to be completed online, including payment and uploading supporting evidence. The release tells us that:

“More than 1,000 petitions were issued through the new system during the testing phase – with 91% of people saying they were satisfied with the service.”

And that:

“…this simpler and less technical online service has already contributed to a 95% drop in the number of applications being returned because of mistakes, when compared with paper forms.”

The aforementioned Lucy Frazer, commented:

“Allowing divorce applications to be made online will help make sure we are best supporting people going through an often difficult and painful time.

“More people will have the option of moving from paper-based processes to online systems which will cut waste, speed up services which can be safely expedited, and otherwise better fit with modern day life.”

It all sounds quite wonderful, and perhaps it is, but before we get too carried away with this brave new world there is one major thing we have to consider: most users of the system will still need some proper legal advice.

There are many possible issues that users could run into if they don’t get proper advice, but here are just three obvious examples:

Firstly, in divorce petitions alleging adultery there is the issue of whether or not to name the ‘co-respondent’, i.e. the person with whom you allege your spouse has committed adultery. Naming the co-respondent is optional – the requirement to name them, if their identity was known, was abolished many years ago. The divorce can still go through on the basis of your spouse’s adultery without them being named. However, as any practising family lawyer will attest, many petitioners are eager to name the co-respondent, often as some form of ‘retribution’ for what they have done. I recall often trying to persuade clients against this course of action, as naming the co-respondent can make the divorce unnecessarily more complicated. For example, the co-respondent has to be make a party to the proceedings, and has to be served with the papers. Without proper advice many petitioners are likely to make the mistake of naming the co-respondent when there is no need to, thereby causing themselves a lot of additional stress and problems (concern was recently expressed that the new divorce forms actually encourage petitioners to ‘name and shame’ adulterers).

Secondly, there is the issue of the costs of the divorce. Even if you do it yourself you will have to pay the court fee on the divorce petition (unless you are entitled to an exemption), and this currently stands at £550, a not unsubstantial sum for many. You can ask the court to order your spouse to pay your costs, and even the co-respondent, if you have named them. But should you do so? Might claiming costs make things more complicated, by encouraging the respondent not to cooperate, or even to defend the divorce? You may actually end up wishing you hadn’t claimed costs. Whatever, this is an issue upon which you should really get advice.

Thirdly, many people who do their own divorce without legal advice may not appreciate that there is a connection between the divorce and the financial settlement, and that it may not be in their interests to finalise the divorce by applying for the decree absolute until the financial settlement has been sorted out. Ending the marriage has consequences, for example in relation to the rights of a spouse who does not own the matrimonial home, and in relation to pensions. It is therefore absolutely essential that anyone applying for a decree absolute knows and understands the consequences for them of ending the marriage, before they apply.

Many people who use the new online divorce process may do so without taking proper legal advice, encouraged by the ease of use of the system. However, if they do so they may be taking unnecessary risks.

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