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!

Resources for parents

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For those going through family breakdown there is a massive amount of information available on the internet. Sometimes the choice can be overwhelming. We’re often asked for recommendations of resources that can help families going through separation, divorce or civil partnership dissolution, so we wanted to bring to your attention The Parent Connection.

The Parent Connection is a website run by One Plus One, the UK’s leading relationship research organisation. It contains information to support people in making the transition from being partners to being co-parents. There is a focus on learning constructive communication skills and on planning for co-parenting in the long-term. These are elements that we as mediators work hard on with parents, to help them resolve the issues between them about the children.

There is plenty of information to help parents understand what their children might be thinking and feeling, and the site also looks at practical steps that parents can take to help children through the situation. The videos it includes are rather powerful, and might be particularly helpful for people who are struggling to assess how older children are reacting to new family circumstances or make sense of their own complicated feelings.

There is a forum available where people can get support from others with experience of their situations, and share stories. The site says that the forum is moderated by mediators who ensure that the tone of discussion remains constructive and positive. The site also provides a “listening room” instant-chat service which is open on Saturdays at 4pm and Mondays and Thursdays at 8pm. This provides access to someone with a counselling background, which can be useful as a first port of call for people who perhaps are not quite at the stage where they feel able to seek counselling but want to investigate more about it.

For those who are going through difficulties in their relationship but who have not made a decision to divorce, The Parent Connection has a helpful sister site, The Couple Connection. This site focuses on adult relationships: how to deal with change, commitment, disagreements or problems, and how to strengthen your connection to avoid problems in the future. It also carries information and insights on dealing with specific challenges to a relationship, for example if one partner has an affair, or if there are major recurring problems arising from housework or money. Again there are forums for discussion and a listening room, which is available every evening.

These resources are free and carry plenty of useful information and ideas, whatever the status of your relationship.  Why not take a look and see if they inspire you to do anything differently?

 

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.

 

Collab marches East

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Hello, it’s William Hogg here. I’m just back from a trip to Bratislava, where I’ve been helping to introduce collaborative law to Slovakian family lawyers. I thought I’d tell you a bit about it.

I first went to Bratislava at the invitation of the Slovaks last year, after some of their family lawyers saw me present at a conference in Brno in the Czech Republic. I’ve been a member of the Czech Mediation Board for a couple of years now and have very much enjoyed the work I have done with them to make mediation more effective as part of the family law system there. At that conference I was introducing the concept of collaborative law. The Slovakian lawyers there felt that it could be a useful addition to their processes so invited me to come and tell them a bit more about it.

Family law in Slovakia is a developing area. The country is still struggling to shake off the cultural handcuffs of the communist era, and it is difficult for family lawyers to make a living there because people are unwilling to pay much for advice about family matters. Fees for family work are remarkably low by western standards. The profession is dominated by longstanding practitioners and family law tends to have a litigious character. However, things are changing and I noticed this time that there were more young people in my audience who are starting to make their way in the field of family law.

Mediation is entrenched in Slovakia, and the rules indicate that when you are in mediation you should go to a notary and register it so that your court proceedings can automatically be stayed for up to three years to let the mediation take its course. This procedure is not universally adhered to, and often people go straight to mediation without notarising it so that court proceedings are not delayed if things don’t get resolved. The family courts in Slovakia are public, and collaborative practice offers people the opportunity of privacy to resolve their dispute, as it does here. This is another reason why collaborative law appeals to Slovakian family lawyers. They particularly see it as a useful tool to employ where there are middle or high-value assets to divide on divorce, and the parties may need more legal support to decide how to do it.

My role last week was to present an introduction to collaborative law . This year I was involved in Part 2 of the 3-part course. The enthusiasm of the Slovakian lawyers is palpable and it was an engaging and stimulating environment to train in. I am glad also to have been asked to assist with writing the collaborative law training course for Slovakian lawyers, which will be specifically tailored to Slovakian culture and the legal system there so that it is easy to implement and responds adequately to client needs. I have also been involved in putting together a joint application from the Czech and Slovakian lawyer groups for a grant from the EU to support the introduction of collaborative law into these countries. In contrast to what you might assume, the Czechs and the Slovaks work together well – one might say it is a good collaborative example!

To contact William Hogg, email williamhogg@cflp.co.uk or telephone 01223 443332.