There won’t be many of us who have not noticed the recent announcements in the media from the Justice Secretary, David Gauke in respect of major divorce reform.
What’s all the hype about?
The reports state that this is the biggest shake up in divorce law for 50 years – and that’s probably correct as the current laws are 50 years old.
Basically, the new reforms will end the current process which relies on one party blaming the other for the breakdown of the divorce if they have not been separated for a period of two years or more.
The current law means that if the parties have not been separated for at least two years the only option is to divorce on either the ground of unreasonable behaviour or adultery. If a third party is not involved that leaves the parties having to exaggerate or, indeed fabricate, examples for the divorce petition that constitute ‘unreasonable behaviour’. I’m sure I’m not the only divorce practitioner that has advised a party who is on reasonably amicable terms with their ex to go off and have a coffee with them and ‘agree’ what the reasons for the divorce are going to be!
If the parties aren’t that amicable then developing examples of unreasonable behaviour can led to more arguments that are necessary, just to get the divorce off the ground –and if there are then financial matters to resolve an acrimonious start does not help matters.
It is not conducive to positive negotiations regarding a financial settlement to be resolved if the party receiving the divorce papers feels that they are totally exaggerated and constitute “a pack of lies”.
Furthermore I find it extremely difficult explaining to a client who has separated amicably from their partner that they “just can’t get divorced!” And that if they don’t want to wait two years they will have to, ultimately, “exaggerate the truth”.
What is planned?
Well the divorce reforms will mean that instead of one party having to blame the other or show a certain period of separation they will only have to submit a statement to the court of “irretrievable breakdown” to say that the marriage has broken down. However, there will have to be a six month period from the filing of the divorce to the decree absolute to allow for reflection and counselling, if necessary. (And given the current delays at the family court this won’t be too difficult to fulfil!) Joint applications will also be able to be made.
The reforms will now be introduced into legislation as soon as there is enough parliamentary time which, will, hopefully, coincide with on-line divorces becoming more accessible for all.
Will this mean that solicitors will no longer need to be involved if I want to get divorced?
There is no doubt that the new reforms will make the obtaining of a divorce more straightforward and ‘user friendly’ for people who wish to do it themselves.
However, as Baroness Shackleton pointed out on Radio 4’s Woman’s Hour it will be more effective for those couples who live in a cramped flat together and just want to ‘get out’.
For those couples who need to resolve financial matters the reforms will not help with this but will merely allow for the logistics to be dealt with more quickly and for the lawyers to concentrate on the settlement of financial issues.
Warning – legal advice is and still will be required where there are financial issues to address.
These reforms are, however, great news for everyone involved in family law that wish to see divorces obtained more amicably.
The news in the past couple of days has contained full details of the divorce of Amazon boss Jeff Bezos and how it has left his wife the world’s third richest woman.
However, it was not the headline that impressed me but, rather, the small print that revealed how the couple worked together to remain amicable and will continue to do so. In today’s world of the media enjoying reporting on the most acrimonious of divorces it is refreshing!
So, what does this tell us? That even the highest net worth divorces can be resolved amicably!
I know that numerous potential clients are reluctant to consult lawyers regarding their separation because we come with the idea, unfortunately, that that’s when things start to go wrong and become acrimonious. Indeed, very often the main thing that a client says to me is that they don’t want to be arguing about it – they want it to be straightforward.
So, what are the options available to couples who are separating on amicable terms and wish to resolve financial matters as amicably as possible?
There are a number of ways of reaching a financial settlement without acrimony. These are as follows but before I expand on them it is important to note that they all rely on both parties being honest about their financial positions and providing full and frank disclosure of this to the other party.
So, what are the main options?
Using Solicitors (hopefully members of Resolution!)
Both parties instruct their own solicitors to liaise and resolve financial matters for them. The advantage of this scenario is that the lawyers know what they’re doing (hopefully!) and can, therefore, manage their client’s expectations.
The solicitors know what, in reality, is a fair and reasonable settlement for both parties and can advise accordingly.
Both parties receive individual legal advice and support.
As long as both parties are honest and up front there is no reason why this should be a drawn out process and so costs should be limited. Costs increase in cases where matters become acrimonious and one party does not disclose what they should which results in a lack of trust.
With this option the parties can be referred to mediation, or make their own referral. An advantage of this option is that legal aid is still available for those people on lower incomes and who would struggle to meet legal fees. The mediator’s role is to help the parties negotiate a financial settlement between themselves which they are both happy with. Both parties are able to obtain their own independent legal advice throughout the process and once an agreement is reached this can be drawn into a consent order by solicitors, which is legally binding.
Ideally, this option should be cheaper than using solicitors from day one but I have been concerned recently about some extremely high charges being made in this area. So shop around!
Using a collaborative lawyer
A collaborative lawyer is one who is a skilled mediator and who works with another collaborative lawyer to help the parties reach an agreement. It is a mixture of options one and two above and involves the parties signing up to a collaborative process which involves a number of round the table meetings to reach a settlement. Should the negotiations break down the solicitors have to step down and the parties have to find alternative representation. The idea behind this is that there is, therefore, an incentive for an agreement to be reached.
Personally, I’m not sure if this is as popular as it was intended to be when introduced as I find that a lot of clients, even those on amicable terms, are sceptical about trying to sort a deal round a table and feel under pressure to do so. However, it does work for some.
Reaching an agreement between themselves
All clients are advised that any agreement reached with each other is better than one that is ‘forced’ upon them. However, it is important to note that in the eyes of the court the agreement has to be a ‘reasonable’ one otherwise it won’t receive the court’s approval and therefore won’t be legally binding.
Furthermore, it’s extremely important for the agreement to be drafted into a consent order by solicitors and approved by the court in order to achieve a clean break – otherwise the other party may come back in the future looking for more – and that’s when things do become acrimonious!
I hope that the above has been useful for you. Should you require any further information then please don’t hesitate to contact me.