Musings of a Family Lawyer
The advent of the government’s consultation on no fault divorce has prompted me to consider the changes I have seen during my career of over 30 years in family law.
Currently, there is only one ground for divorce, the irretrievable breakdown of the marriage. In order to establish irretrievable breakdown, you must rely on one of five “bases” and, if you have not been separated for a minimum period of two years, the only bases open to you are the other party’s adultery or unreasonable behaviour.
I often come across clients who have parted amicably and managed to agree on the arrangements for their children and how to divide their assets and income. They want to make the financial settlement legally binding, which can only be done by obtaining an order from the court within divorce proceedings. Then we have to draft a Divorce Petition giving details of adultery or unreasonable behaviour and this ruins the couple’s efforts to remain amicable, and can destroy the agreement in some cases. For this reason most family lawyers welcome the idea of no fault divorce.
When I first started out as an articled clerk, it was not possible to divorce during the first three years of marriage – this has subsequently been reduced to just the first year.
In every divorce, the court would automatically consider the arrangements for the children and the divorce could not proceed until a judge had certified that s/he was satisfied with the arrangements. Usually, a formal order was made regarding which parent was to have “custody”, “care and control” and “access”. Things changed when the Children Act 1989 came into force. Since then the court will only make an order regarding a child if it can be demonstrated that it is better for the child that on order is made. The court no longer considers the arrangements for the child/ren as part of the divorce.
It was not until the House of Lords decision in the case of White – v – White in 2001 that the principle of sharing matrimonial assets equally was established. Prior to that assets would be transferred to the more financially vulnerable party (usually the wife with the children) to satisfy financial need only.
It was not possible to obtain a pension sharing order, which takes funds from the pension of one party and creates a new, separate pension for the other party, until December 2000.
A lot of progress has been made over the last 30 years but there are still areas of family law which are outdated and in need of reform.
For further assistance with any Family Law matters, please contact Joanna Toloczko, Head of Family Law at Meaby & Co Solicitors. jtoloczko@meaby.co.uk or 020 3861 5155
