Category Archives: Divorce myths

A brief history of divorce

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There’s a lot of discussion among family lawyers at the moment about “no fault divorce”, particularly Resolution’s campaign to enable people to divorce without delay and without alleging that the other person in the marriage has been at fault. We’ve alluded to this debate in a previous post and will return to it in more substance another time. To understand the current discussions we think it’s important to have an idea of the context for the changes now being demanded, and so we present CFLP’s “A Brief History of Divorce”.

Way back in the days of yore, when the church was more powerful than the monarch, marriage was a church institution and so divorce was also the preserve of the church. Marriage was for life and divorce exceedingly rare, although the church would occasionally grant a divorce “a mensa et thoro” which enabled people to live apart if there had been significant cruelty, but not to remarry. (Henry VIII, of course, did whatever he wanted.) In the eighteenth and early nineteenth century, it was possible to get a divorce granted by Act of Parliament, but such an option was only open to the rich. The Matrimonial Causes Act 1857 was the first divorce law of general application.

The 1857 Act introduced divorce through the court. Men were able to “petition the court” for a divorce on the basis of their wife’s adultery, which would have to be proved, as would the absence of any collusion or condonation of that adultery. Women who wanted to divorce their husbands needed also to prove an aggravating factor of the adultery, such as rape or incest. The High Court in London was the only place to get your divorce, and proceedings were held in open court, enabling society to be scandalised by the personal details revealed during the process.

The huge social changes in England during and following the First World War, particularly for the role of women in society, led to divorce law reform as it did to reforms in other areas. The Matrimonial Causes Act 1923 put men and women on an equal footing for the first time, enabling either spouse to petition the court for a divorce on the basis of their spouse’s adultery. The requirement to prove the deed and the absence of collusion remained, as did the procedural requirements. In 1937 another Matrimonial Causes Act introduced three more options for unhappy spouses to take to court, and so it became possible to divorce on the grounds of cruelty, desertion and incurable insanity as well as adultery. These were termed “matrimonial offences”. As before, each allegation needed to be proved by the petitioner’s oral evidence. At this stage, parliament also introduced a bar to divorcing in the first three years of marriage.

The Second World War brought about another period of great social change, and a start to the modern era of life as we know it now. Marriages broke down under the strain of war, or its after-effects, in numbers never before experienced and at all levels of society. The church and the government became increasingly concerned that the divorce laws were no longer fit for purpose – unhappy couples would arrange for one spouse to book into a hotel at the seaside for a weekend to commit the adultery necessary for them to divorce. A Royal Commission in the 1950s could not decide the best way forward, and in the mid-1960’s the Archbishop of Canterbury took up the baton. His office prepared a report demanding reform of the law to ensure that people could obtain a divorce if they could show the breakdown of their marriage, and the government set the Law Commission to research the most appropriate way to modernise the divorce laws. This process gestated the Divorce Reform Act 1969, which although now consolidated in the Matrimonial Causes Act 1973 still contains the divorce law we are subject to today.

Like a great deal of social policy legislation, the Divorce Reform Act 1969 was a compromise. It enabled either party to seek a divorce on the basis of the irretrievable breakdown of the marriage, as the Archbishop wanted in the 1960s, but requires that the breakdown be proved by evidence of one of five “facts”: adultery, behaviour, desertion, or separation for 2 years and the other party’s consent to a divorce or separation for five years. You can see that although this Act removed the concept of a matrimonial offence, the old 1937 grounds of cruelty (now termed “unreasonable behaviour”) and desertion in essence remained. However, the big advance in 1969 was that there is no “fault” as such involved in petitions based on 2 or 5 years’ separation. Procedurally there were also changes: it was possible for the first time to get a divorce through the local county court rather than coming to the High Court in London. During the 1970s, courts developed the “special procedure” of divorce-on-paper that still represents the way things are done in the vast majority of divorces.

There are two more quirks of history to note: the first is that it was not until 1984 that the bar on divorcing before 3 years of marriage had elapsed was reduced to 1 year. The second is that major attempts were made in the mid-90s to enact the “no-fault divorce” for which practitioners are now again clamouring. In fact, the Family Law Act 1996 did exactly that: the procedure was that anyone wanting to get a divorce would have to attend an Information Meeting investigating the possibility of reconciliation and discussing mediation if that was not possible. If he or she (or they) still wanted to divorce, a statement of marital breakdown had to be made to court, not less than 3 months after attending the information meeting. No more than 14 days after the filing of the statement, a period of reflection and consideration would commence – this would last 9 months if the couple had no children under 16, or 15 months if they did. After that, the court could finalise the divorce.

Although other parts of the Family Law Act 1996 have been brought into force, the divorce provisions never were and have recently been repealed. The Lord Chancellor’s Department (as it then was) cited a failure of the information meetings as the reason, but the fact was that the Bill suffered so many amendments and compromises to ensure its passage through a Conservative parliament, many of whose members still considered it an attack on the sanctity of marriage and family life, that it was not fit for purpose at the end of the process. The difficult governmental experience with this Bill may be one of the reasons why successive governments since have not been willing to attempt to reform the divorce laws – the current government certainly shows no enthusiasm, although they are all for increasing access to marriage (see previous post here).

As a final historical post-script, it is important to note that the Civil Partnership Act 2004 not only afforded same-sex couples the right to register their civil partnerships, but also to dissolve them. Civil partnership dissolution is available on effectively the same terms as divorce, save that a petition on the basis of adultery is not available due to problems applying the accepted legal definition of the act to same-sex couples. There is something rather jarring about the fact that same-sex couples won their generations-long fight to be afforded the opportunity to have their relationships officially recognised by the state, only to find themselves subjected to effectively the same archaic framework for exit that has existed for nearly a hundred years!

As you can see, divorce law in England in 2012 is mainly a mish-mash of laws from 1923, 1937, and 1969, with recent policy made predominantly by the lawyers and high churchmen of the 1960s. Our adversarial court system, into which divorce was placed in the nineteenth century, still requires one party to obtain a divorce against the other by “petitioning the court” as it did in 1857, even if the divorce is requested on the basis of living apart from each other for two years and with the agreement of both parties. Matrimonial offences may have been removed in name, but the only way of divorcing quickly is still to allege that one spouse has been at fault.

We at CFLP feel that the anachronistic divorce laws of this country encourage allegations to be made by one spouse against the other that increase acrimony and distress for the whole family. This sets people up for a fight. If a marriage has broken down irretrievably and both parties agree that this is the case, to them wait two years to obtain a divorce is nothing more than delay for delay’s sake. As the Archbishop observed in the 1960s, the divorce laws should not be used to keep people in bad marriages against their will. It is time for the law of this country to treat people who have decided that their marriage is over with respect and compassion, in the knowledge that it is not a decision reached lightly and without consideration of the effect on any children. We believe that it is time for a streamlined process without the need for allegations or recriminations, that enables people to move on with dignity and focus on their separate futures without the confines imposed by the laws of yesteryear.

We’d be interested to know whether you agree!

How long is your marriage?

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As part of our occasional “divorce myths” series we thought we’d take a look at the effect that the length of time for which a couple has been married can affect how their financial matters are split on divorce.

When it comes to separating out peoples’ money and property after their relationship has broken down, a number of different things have to be taken into account: most important of these things is usually what each family member needs, and first consideration is always for the wellbeing of any children of the family. Other factors include what resources each person has available, including their ability to earn, and their ages, state of health, etc: you can see a full list and explanation on our ‘financial orders: principles’ factsheet here. The length of the marriage is set down in the law as a factor that the law considers important. The aim of the law is to make a fair division of whatever financial resources are available.

Lawyers look at two main sources of law to give you advice on what kind of division of money and property would be fair in your case. There is statute law, which is made by parliament (for divorcing couples, this is the Matrimonial Causes Act 1973), and case law, which is made by senior judges when they are interpreting parliament’s intention in making the law and applying this to the individual cases – people’s lives – that come before them. Case law shows consistently that the longer the marriage, the more chance there is that the economically weaker party will, where circumstances allow, be given a settlement that enables them to be financially secure for the rest of their lives. The division of assets in a long marriage is more likely to be equal, or close to it, whether or not the wealth has all come from one side.

So what makes a long marriage? Case law is not certain. 20 years ago a long marriage might have been considered to start at 20 years’ duration; now it may be a relationship as short as 10-15 years depending on circumstances. However, the most important thing to understand is that a “long marriage” can be just a couple of years, even down to a matter of months. This is because the courts consider pre-marital cohabitation, if it is “seamless” in its transition to marriage, to be sufficient evidence of the requisite commitment to be considered part of the marriage period. So in many circumstances and particularly for younger couples who are more likely to cohabit, the relevant question that your lawyer will wish to know the answer to is not “when did you get married?” but rather, “when did you move in together?”.

When civil partnerships were first introduced in law in 2004, there was much discussion about how the courts would treat civil partners’ financial division on dissolution. Inevitably, among the first couples to register civil partnerships were many couples to whom formalising a relationship in the eyes of the law had previously been impossible, but who had lived together for decades. Would the court amalgamate the periods of cohabitation and civil partnership to catapault them straight into “long marriage” territory? The answer we expected was “yes”, and it came definitively last week from the Court of Appeal when it considered the first financial appeal on a civil partnership dissolution in the case of Lawrence v Gallagher (see here for the judgment). There was no fuss about it, despite the fact that the couple involved had lived together for only a short time after their civil partnership was registered. Their many years of living together before registering their civil partnership meant that they were treated by the court just like any other couple who had been married for a long time.

The moral of the story is this: a short marriage/civil partnership is not a short marriage/civil partnership if you lived together before marriage/civil partnership for a long time; and living together before marriage/civil partnership can have legal consequences further down the line if you do decide to marry/register a civil partnership later.

 

When Granny and Grandpa divorce…

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The media was in full swing about “grey divorce” a few weeks ago as it transpired that statistics published recently indicated that the over-60s were the only demographic group in the UK in which divorce is on the increase. It’s always said that you can make up any “fact” you like and illustrate it with numbers, but this one rings true to us as it reflects a trend we have been seeing in our office for a while. There are many suggested reasons for it, which we’re not going to go through again – for example, have a look at the different approaches to the issue taken by The Daily Mail and The Observer. Instead, we thought we’d share our own thoughts about what happens when those coming up to retirement age divorce.

There’s a misconception that it’s generally women in their 60’s who are choosing to end their marriages, often when their husbands retire and start hanging around the house more. This is “backed up” by statistics that show most of the divorce petitions in this age group are filed by women.

It may be true that women are taking the initiative, but in fact women are generally more likely to be the ones to start divorce proceedings in any age-group. It doesn’t necessarily mean that they’re the ones taking the decision to end the marriage. For example, wherever possible we as solicitors or as mediators would try to help the people involved to decide the terms of the divorce process that will suit them best – often, particularly where gender roles during the marriage have been quite traditional, the man will ‘fall on his sword’, admitting adultery or unreasonable behaviour on an agreed petition filed by the wife to facilitate a quick process. This means that the wife is statistically shown as the divorce petitioner, whereas the original decision to divorce may not have come from her.

Often, people don’t realise that it really doesn’t matter who files the divorce petition, as long as the question of costs is negotiated and it contains no contentious material. It generally has no bearing on the financial process, or indeed to any arrangements made for the children.

Older couples may find that their financial circumstances are more complicated, and certainly benefit from specialist advice when trying to create two households from one. Pensions may be the most valuable assets and may already be in payment, which means it is a more complex operation to determine a fair division. Another specific problem that affects those starting again at a more mature stage of life is rehousing. Although it is common for there to be more equity available for rehousing due to the upsurge in the housing market over the last 30 years, there may not be enough comfortably to provide housing for both people at an appropriate level, and it’s difficult to get a mortgage in your 60’s. An expert overview is essential to enable both people to reach a settlement that will best enable them to start again with dignity, in comfort, and with reasonable hopes for what the future holds.

It may also be more important to consider whether either or both people need any extra emotional support during the process, as they face the challenges of changed expectations both for their own futures and perhaps, too, the financial futures of their children. When couples have spent much of their lives building an inheritance for their children and then realise they need to spend it on housing and supporting themselves in two households instead, it can be quite a blow.

Life is long. Marriage was invented when life expectancy was much shorter and “forever” might have meant 20 years if you were lucky. Now it’s not terribly unusual to find people having had two marriages of 25 years or more duration in a lifetime. There are success stories for those who divorce in late middle-age, and sad ones too; but in every case, expert advice can make all the difference to coming out of the process with faith in the future, whatever the future holds.

 

The January divorce spike?

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So welcome to January. As we write this, the wind is whipping up the old autumn leaves down on Cambridge Place and the rain is lashing the windows. Cambridge is a very beautiful city, but this is not one of its better days; January is not one of any British city’s better months. It seems to be approaching the new year under a cloud; we understand that many of our clients and potential clients will be doing the same, filled with anxiety and trepidation about the year ahead.

It doesn’t help that every new year the media whips up the usual storm to accompany the windy greyness outside: first working day in January is ‘divorce day’, they say (see here or here for example). Couples rush to divorce after Christmas and New Year Marital Nightmares, scream the papers: couples who cannot bear 10 days off work in the same house finally choose to divorce at the beginning of January. We’re often asked: is it true?

Like all these things, there are elements of truth in the story if you look hard enough. There is usually a bit of a new client spike in January. Christmas is a family occasion with choices to be made at every turn: choices about how much money to spend, how much of the domestic work each party does and about the presence or absence of wider family members. These three things – finance, housework, in-laws – are noted flashpoints even for generally happy couples. Some couples do find it difficult to endure the festive season when their relationship is already foundering, but this is not the only reason people choose January to contact a family law solicitor or mediator about the technicalities of a separation.

Often, a separation is something that couples have been discussing between themselves for quite a while. They may have gone through relationship or separation counselling, or may have already physically separated without the assistance of professionals some time ago, but have chosen to leave the formal or legal aspects of the separation until “the new year”. The arrival of a different digit on the end of the calendar is a potent symbol of change and of a new start, new opportunities, new possibilities: traditions of resolutions exist in almost every society at the start of the new year. It seems psychologically easier to draw a line in the sand at the end of the old year and try to be positive about the future at the beginning of the new one, whatever adversity one might face.

This psychological effect may go some way to explaining the so-called January divorce spike – for many people, it’s the culmination of months or years of work and careful assessment and decision-making, rather than a specific reaction to the Christmas chaos. But it’s important to realise that seeing a solicitor or a mediator doesn’t set you on an unalterable course to divorce. We see people at all stages of their relationships: before, during and at the end of marriages, civil partnerships, cohabitations or even parenthood. We’re happy just to spend some time explaining the options, discussing ways forward and who might be best placed to help you achieve your goals, whether that might be a reconciliation, an elegant disengagement, or an agreement to review the situation in the future. Whatever your circumstances, we will do our best to support you and advise you in the most practical and cost-effective way.

Our advice is to ignore what the papers say and come and tell us your own story. From all of us at Cambridge Family Law Practice, we wish you a happy and positive new year.