Divorce
The modern day
With recent landmark decisions being made concerning
applications for financial remedy where a considerable amount
of time has passed (Vince v Wyatt [2013] EWCA civ 495), and
the potential knock on effect this might have in the future, the
current case law has given me cause to consider the current
issues within ‘divorce law’.
As it stands, unless a married couple
wait for two years before issuing divorce
proceedings (by consent), the only
options available to evidence a divorce is
to cite the others adultery or unreasonable
behaviour. Remarkably, a recent petition
of one of my clients was rejected on the
grounds of unreasonable behaviour on
the basis that the behaviour was not sever
enough. Is it not enough that the parties’
detest one another and no longer wish to
be married? In this case the respondent
had been given a verbal warning by
the police for harassing my client
continuously and it was also confirmed
the respondent was in a new relationship
with an unknown female (along with other
allegations). It begs the question, what
exactly does one need to do to qualify for
a divorce and how far do matters need to
be inflamed in order to satisfy the court
that a divorce is necessary?
Such acrimony only serves to inflame
matters where, quite frankly, it is not
required. A separation is already a
mentally and emotionally challenging
experience for the husband or wife,
without having to further argue over the
‘s/he did this or didn’t do that’. I’ve lost
count as to how many people have said
they have ‘just grown apart’. Why can’t
a couple separate because they simply
want to or because they no longer love
one another? In cases where there are
children involved one might suggest
that the rules potentially conflict with the
welfare principles of the Children Act
1989. One of the key objectives for the
court is to ensure a child does not suffer
from emotional harm. A child is likely to
suffer significant emotional harm when
they witness their parents at logger heads
with one another as a result of inflamed
divorce proceedings. In light of the world
we live in now the law should allow for a
faultless divorce which doesn’t require the
petitioner to list several reasons why it is
not possible for a marriage to continue
working. In my view reform is needed
but what can you do to try and limit any
potential and unnecessary conflict where
it doesn’t already exist?
For separated couples who are still
amicable and do not want to go through
the process of having to air their dirty
laundry to a Judge within divorce
proceedings until they can evidence
two years separation with consent,
a separation agreement might assist
in achieving a amicable separation
and a sufficient financial agreement.
A separation agreement is not legally
binding but it will be persuasive
should it need to be relied upon and
if it is negotiated and executed in the
correct way. Providing the agreement
is entered into correctly a court will
only not uphold an agreement where
it does not adequately meet one
parties needs. The main purpose of a
separation agreement is to set out how
the parties will arrange their finances, it
can deal with arrangements in respect
of the children (although it will not
preclude either party from making an
application to the court for a Child
Arrangements Order) and which party
will own certain assets following the
parties’ separation. However, there is a
risk that if circumstances change over
time and prior to a Final Order being
secured in divorce proceedings that the
separation agreement may not be upheld.
A separation agreement is not to be
confused with a post nuptial agreement
which confirms the intentions of the
parties if they were to separate whilst they
are still happily married.
Separation agreements may also be
appropriate where the ‘one year rule’ is
not satisfied or for religious purposes.
They can also provide financial stability
for couples who have separated but
believe they may reconcile and do not
wish to divorce immediately.
One might say a separation agreement
is an unnecessary expense as it does
not end the marriage and will still require
a consent order to be drafted, often
repeating the agreement, in order to
make it legally binding (which will not
be possible until reaching Decree Nisi
stage of the divorce). This is true, but the
alternative is to issue divorce proceedings
which could have the potential to ruin
any good relations (where they exist)
and could end up costing significantly
more. Separation agreements are not
for everyone. They will only