Saturday 28 July 2018

Divorce law and the need for change

It does appear that the recent furore over a wife who has been unable to obtain a divorce from her husband because his alleged “unreasonable behaviour” was insufficient to justify an irretrievable breakdown of the marriage, is going to persuade the Government to try once again to tackle the challenge of changing our divorce law.

As a solicitor undertaking family work for over 36 years I support the view that reform is long overdue although whether our law makers are capable of arriving at a compromise acceptable both to those who demand modernisation and those seeking to protect the sanctity of marriage is more debateable.

Under the current law dating back to 1968 to obtain a divorce you must satisfy the court that the marriage has irretrievably broken down, and you can only do that by proving 1 of 5 grounds namely the other party’s adultery, the other party’s unreasonable behaviour, 2 years separation with the consent of the other party, 5 years separation, or 2 years desertion.
So assuming that the marriage has died but the parties are still living in the same property and no third part is involved the only option is an allegation of unreasonable behaviour (whether by agreement or not).

Unreasonable behaviour allegations must by definition give a very black and white view of a relationship when in reality the situation is rarely so one sided and more a varying shade of grey.

The reformers argue that if one spouse has finally concluded that the marriage is at an end then it has irretrievably broken down and this is certainly the case where both parties are agreed. They say if 2 adults can enter in to a marriage why should the state prevent them from exiting in a quick and non-confrontational manner if they wish. Others will argue that to make divorce too easy will undermine the institution taking away the incentive to work through difficulties and others will say that marriage is intended as a lifelong commitment.

I have seen it suggested that the easiest solution would be to reduce the separation periods mentioned above from 2 and 5 years to perhaps 6 months and a year. This may work in some cases but in the majority of cases I have handled over the years the parties could not afford to live separately until the entire financial package had been agreed and potentially the family home sold. The financial order is not made until an advanced stage of the divorce and so if the divorce can only be started post separation there is an obvious chicken and egg quandary.

The options are numerous but my preference would be to have 3 potential grounds:

1. Mutual consent – this would involve reliance being placed on a certificate of consent by the other spouse signed in the presence of a family lawyer to avoid the risk of duress;
2. The other party’s adultery;
3. Where the parties were not agreed and provable adultery had not taken place then a spouse should be entitled to lodge a certificate of intent with the court and say 6 months later could commence divorce proceedings. This would allow a spouse who is convinced that an irretrievable breakdown has taken place to commence action without the need for a lengthy separation or allegations against the spouse, but also building in a cooling off/reflection period.

I will be watching developments with interest!

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