When love breaks down

Family Law with Sally Goldstone

Saturday 19th May 2018 was a very special day – my mother’s 90th birthday and the Royal Wedding of Prince Harry to Meghan Markle. All birthday celebrations were timetabled so that my mother (well, all of us) could watch the glitz and glamour of a Royalty meets Hollywood wedding. 2018 also marks the 60th year of my parent’s marriage. Let’s not forget Bishop Curry’s gripping (for the first 5 minutes) address when he used the word LOVE 58 times in 14 minutes.

So as the Duke and Duchess of Sussex embark on married life I sit wondering whether they will still be together to mark their 60 years together. I hope so, but today’s modern society is very different from the one that existed when my parents got married almost 60 years ago. And I reflect on the changes that have evolved in family law.

In 1857 divorce was first introduced through the court, when only a man could divorce his wife on her adultery. Equality of sexes was introduced in 1923 when either the husband or the wife could request a divorce on the others adultery. In 1937 the “matrimonial offences” were extended to include cruelty, desertion and incurable insanity.

Fast forward to 1973 when the Matrimonial Causes Act of that year set out that there is only one ground for divorce – that the marriage has “irretrievably broken down”. To prove this, the person seeking the divorce must rely on one of 5 facts – adultery, unreasonable behaviour, desertion, 2 years separation when the respondent consents, and 5 years separation if the respondent does not consent. 45 years on from that legislation and there have been no changes to divorce law, despite the many changes to the way we live. One person may be stuck in a loveless marriage because they cannot “blame” their spouse for the marriage breakdown – there has been no adultery or unreasonable behaviour. If the spouse will not consent, the marriage will endure for 5 long and unhappy years before a divorce can be granted.

Unreasonable behaviour has been the most common fact to rely on in divorce and over the years, it has always seemed to me that a “common-sense” approach has been adopted by the courts. The yardstick of measuring what is unreasonable has not seemed too high and the general approach has been not to make the allegations of unreasonable behaviour too antagonistic. Indeed when dealing with matters relating to children and finances, the court encourages a conciliatory approach, promoting mediation as a starting point to try to resolve difference rather than the courts.

Family law group Resolution has, for the last 30 years, worked to transform family justice and to promote a constructive approach to resolving family disputes. Family lawyers eagerly await the outcome of the reported case of Owens v Owens – a case where the first judge who dealt with the case decided that the wife’s allegations of unreasonable behaviour were insufficient to satisfy the Court that the alleged behaviour was so unreasonable that the wife could not reasonably be expected to live with the husband. The case has been appealed and in May reached the highest court, the Supreme Court. Judgement is awaited, but in the meantime I have felt obliged to “beef up” any petitions that I draft to en-sure that the test of unreasonable behaviour is met. I have done this with great sadness, as it goes against the grain as a longstanding member of Resolution that I now feel I must risk increasing acrimony to make sure my client gets the divorce they want. Acrimony must be avoided; the parties may still need to co-parent, and sorting out financial separation can become over complex if one party wants to punish the other financially by seeking more than one is entitled to or offering less than is fair to achieve a settlement. We all hope for “no fault divorce” where blame does not need to be apportioned and a couple can simply agree to divorce. Whereas in a bygone era marriage was to be upheld and not easily ended, modern society’s approach is very different and the State should not force people to remain together in a loveless union. Perhaps this is why fewer people are marrying now than ever before.

When I qualified as a solicitor in 1991 procedures were much different. The court was the first and last place where disputes were settled. In response to changing social expectations, a large range of innovative practices have been introduced to encourage conciliation rather than the more adversarial approach of resolving disputes. Mediation is now a pre-requisite in almost all types of family law cases before an application can be made to the court. Mediation encourages the parties to discuss their finances openly with the other, in the presence of a trained mediator in the hope that they can agree terms of settlement. There are parenting workshops to assist parents in understanding how to put children first, setting aside their own issues and prioritising the children’s needs. Collaborative practices also encourage out of court settlements and more recently family arbitration, outside of the official court forum has also been encouraged.

The Government’s policy intent is to help people make arrangements following a family separation or divorce for themselves. The first phase of putting the divorce process online is underway, the divorce petition has been “simplified” to make it more user friendly for individuals (really?) and the Government is working to produce information to help people understand how they can make arrangements for separated parenting, and how they can approach the division of their finances.

So do solicitors have a role? Well I can read on the internet how to install a bathroom, but could I do it without causing problems (or at all)? No – I would call in a plumber. And I believe it is the same for individuals who find themselves having to deal with relationship breakdown. It is far better to seek advice from an experienced specialist solicitor who will guide you through the minefield of legislation. The emotional fallout that often comes with a relationship breakdown can make it difficult for rational decisions to be made; having to read through a raft of information on the internet is time consum-ing and exhausting. It is easy to miss something too – not ticking the right box at the right time on a form could have detrimental consequences. The law in relation to finances on divorce is very different from the law that governs how financial settlements are dealt with when the parties have not been married. And research has shown that there are a range of issues. The “family cluster” commonly involves:

  • Divorce and separation
  • Problems related to the relationship breakdown (financial, social, practical, emotional)
  • Domestic abuse
  • Problems with children
  • Debt

An experienced solicitor will help focus on the most important issues and unscramble the issues in a constructive and methodical way.

Choosing the right solicitor is important. Many solicitors offer an initial 30 minute consultation or fixed fee interview. You have to be comfortable with your solicitor and have trust in them. You and your solicitor form part of a team. Others may be required, such as accountants (especially where there are businesses or tax planning), actuaries (to advise on pensions) – they will all form part of a team to help you achieve the best outcome in a constructive and cost effective way.

To find a specialist family law solicitor visit www.resolution.org.uk

Sally Goldstone is a member of Resolution. She has practised family law for more than 25 years. She has her own specialist family law practice Sally Goldstone Family Law www.sallygoldstone.co.uk

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