Back in 2006 I wrote this article, its surprising how much is still relevant today…
As the McCartney’s continue to slug their divorce out in a very public way, a call for a change in the divorce law has come from Lord Justice Wall, one of Britain’s foremost family law judges. In an interview with The Independent, Lord Justice Wall called for an end to fault-based divorces and the introduction of a system that puts the needs of children and financial provision at the heart of the process. In the interview he described the divorce process as becoming “very easy so that it is a box-ticking exercise, something administrative dressed up as a quasi-judicial function”. This is a view shared by Lord Justice Thorpe, deputy head of family justice who described the divorce process as being “no more complex than applying for a passport or shotgun certificate… as long as you fill in the form correctly, you get your divorce.”
Under the current divorce laws of England and Wales (which were enacted in the 1960’s), if a person wishes to divorce they must allege the “irretrievable breakdown of the marriage” which must then be supported by one of the following 5 facts:
- Your spouse has committed adultery and your find it intolerable to live with them;
- Your spouse has behaved in such a way that you cannot reasonably be expected to live with them (often incorrectly referred to a “unreasonable behaviour”);
- Either party has deserted the other for a continuous period of at least two years immediately preceding the presentation of the divorce petition;
- You have lived apart from your spouse for a continuous period of at least two years immediately preceding the presentation of the petition and there is consent to a decree being granted;
- You have lived apart from your spouse for a continuous period of at least five years immediately preceding the presentation of the petition.
The main criticism of the current divorce laws is that it encourages couples to blame each other if they want a quick divorce. Instead of encouraging parties’ to constructively look forward to the future, the current system requires parties’ to look backwards by pointing the finger of blame as to who was responsible for the breakdown of the marriage. This in turn promotes further conflict in what is already an acrimonious situation. This is no better illustrated than the McCartney case where McCartney struck the first blow with his initial divorce petition which contained aggressive allegations, which in turn triggered Mills leaked and now very public cross petition.
So what are the alternatives?
Lord Justices Thorpe and Wall would like to see an overhaul of the system where fault-based divorce is replaced with a no-fault divorce system which is more in keeping with a completely different moral, ethical and social climate to 1960’s Britain. This is a view shared by Resolution, an organisation of 4,700 lawyers and family justice professionals who believe in a constructive, non confrontational approach to family law matters. “Divorce ought to be as simple a process as getting married. It should be no faults and no details.”
The likely effect of not reforming a system that does not deliver the answer is that it could encourage people to turn to alternative methods of dispute resolution. This could include Collaborative Law, a new approach begun by family lawyers which enables parties’ to manage the divorce process in a dignified manner. In the collaborative process the family lawyers and their clients agree in writing to reach settlement without court involvement. The benefit of this system is that parties’ are given a choice to resolve matters using their own ethics and values in a dignified way.
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