An Outdated Druidic Ritual?Legal professionals everywhere believe current divorce laws are out of date. In England in particular, this became the thinking after the 2018 Supreme Court case of Owens v Owens.
In Owens the Supreme Court of the United Kingdom upheld a decision that refused a contested divorce petition by a wife after the trial judge found the husband’s behavior was not unreasonable enough to justify granting a divorce.The UK Supreme Court and the Court of Appeal expressed regret at not being able to grant the divorce petition. The public reaction to the unfairness Mrs. Owens was placed in led to the passage of the Divorce, Dissolution and Separation Act 2020. Passed in June 2020, the Divorce, Dissolution and Separation Act 2020 comes into force on April 6, 2022. The Act allows either or both parties to a marriage may apply to the court for a “divorce order” which dissolves the marriage on the ground that the marriage has broken down irretrievably. These changes will also apply to the dissolution of civil partnerships. After April 6th, couples will not have to either separate for at least two years – increasing to five if one party does not consent – or allocate blame to legally end their marriage.
Florida No-Fault DivorceThe official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s alleged infidelity with a congresswoman. Instead, you just need to state under oath that your marriage is “irretrievably broken.” Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse. No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.
21st Century DivorcePassage of the Act is causing many lawyers to expect a surge in applications from separating couples when no-fault divorce is introduced in England and Wales. It has been described as the biggest reform of divorce laws for 50 years. The legal requirement to assign blame makes it harder for couples to reach an amicable agreement at an already difficult and often emotional time. Florida’s own experience, and in other countries which have moved to a no-fault system, is that there is a spike when the new law comes in – in Scotland, for example, when they changed the law in 2006. Coupled with the recent increase in divorce and child custody filing related to being quarantined due to the coronavirus pandemic, the new law in England is expecting many to cause a divorce surge.
The latest divorce statistics, published on Thursday, showed that the number of divorce petitions in the last quarter of 2021 was down 26% on the same period in 2020.There are fears that an initial surge in cases coupled with the new technology necessary to implement no-fault divorce will put added pressure on courts have never been under greater strain because of because of Covid and budget cuts. Stowe Family Law is also anticipating a spike in the number of couples seeking divorce, although Amanda Phillips-Wylds, a managing partner at the firm, said others had been rushing to push through a divorce under the existing fault-based system. She suggested couples were motivated by “catharsis”, but also because some “wrongly believe that being able to prove the other party was at fault for the marital breakdown would favorably impact their financial settlement and arrangements for any children … In reality, behavior very rarely impacts financial outcomes or arrangements for children.” Lawyers were at pains to point out that the new law would not affect the financial settlement process – which is separate – nor necessarily speed up the divorce. For the first time there will be a new minimum overall timeframe of six months for the divorce. Edwards said she supported this in principle to allow time for reflection, but added: “I do have some concerns about that because in a coercive controlling relationship there’ll be nothing to stop a joint applicant from withdrawing partway through the process, and then you start all over again.” The government has said it would look at the financial settlement process, in which judges currently have broad discretion, and it is also being urged by bodies including Family Solutions group to look at ways of taking divorcing couples away from the courts altogether to put the welfare of children centre stage. The Guardian article is here.