The Shifting Sands of Family Law Today

Jane Hodge, a Family Law practitioner for over 25 years, recently joined us as a Senior Associate at our Chichester Office. In her first article, she considers some of the key challenges in the world of family law and the implications for couples and children alike.

Family law will always be one of the most difficult areas to practice as a Solicitor. Finding the right blend of empathy and understanding with the ability to give strong, sensible advice - not always what the client wants to hear -  are skills many years in the making.

For years, practitioners have campaigned and supported change to the process of divorce, moving away from fault-based petitions which has seen no legislative change since the 1970’s, to a system where blame is not needed for the marriage to be declared to be at an end.

Currently, if a couple agree that the marriage is at an end they have to be physically separated for 2 years before a non fault-based divorce petition can be filed. The requirement for physical separation can lead to issues regarding housing and where children live in the interim period, which may not ever arise if the process can be simplified.

When Amicable becomes Acrimonious

Ironically, the need for 2 year separation can turn an amicable split into a difficult one as a lot can change during the course of a 2 year separation. An agreement made in good faith but not properly recorded can be easily overturned.

By the time the couple realise this, their financial position would have changed dramatically. This creates unnecessary antagonism in an already difficult situation.

Solicitors prefer in such situations to deal with the dissolution of the marriage sooner rather than later to avoid falling in to this trap.  To do so, the alternatives of an adultery petition or unreasonable behaviour have to be used.  It has long been the case that most solicitors will advise a couple to file a “mild” unreasonable behaviour petition as a means to an end. They would strongly advise not to defend a divorce petition unless they want the marriage to continue.

Many couples agree the contents of an unreasonable behaviour petition between them with the help of their lawyers in an attempt to cut down the acrimony. A previous president of the Family Division has described this as “intellectually dishonest” but the closest we can get to an immediate and amicable divorce. 

It seems something of an oxymoron that the only way to an amicable dissolution of marriage is to blame the other person and create a conflict!

High Court Sets a High Bar for Divorce

So, just when the wheels of campaign for reform are gathering momentum, along comes the Supreme Court in Owens V Owens [2148] UKSC 41.

In a long awaited landmark judgement, a 68 year old woman now must remain married to her husband because the behaviour cited in her petition was not considered by the court as sufficiently unreasonable and the husband did not want the marriage to end. As a consequence, the wife has no option other than to wait for 5 years from physical separation before she can divorce without her husband’s consent. 

This judgement, however heavy it lay in the hearts of the Supreme Court Judges who delivered it, will have an impact on all unreasonable behaviour petitions from now on.

Solicitors will have to advise their clients to ensure that the petition is sufficiently serious to avoid falling in to this position. The role of the family lawyer will be even more important to make sure the right blend of seriousness, whilst not inflaming the situation, is found.

There have been many studies into the effect of blame in divorce. The Nuffield Foundation has for many years been researching the effects of fault-based divorce.  Their statistics revealed that 62% of people who file for divorce and 78% of the respondents said using fault had made the process more bitter.

Even more worryingly, 21% of respondents said fault had made it harder to sort out arrangements for children, and 31% of respondents thought fault made sorting out finances harder. These statistics are impossible to ignore, especially in the context of resolving arrangements for Children.

Thinking of Children First

One of the most significant developments in recent years has been the extent to which children now have voices in the Family Court. There is no lower limit to the age in which a child can have its say, albeit that the views of a young child cannot totally determine matters. They have the opportunity to contribute to the consideration of their best interests.

Each party’s lawyers are likely to agree that it has to be better for children if there is no apportionment of blame in the divorce, especially as arrangements are managed in subsequent years. This would take away the bitterness and point scoring that so many families get drawn into. A “No fault divorce” will allow the parents to look to the future rather than fighting over the past.

With the introduction of various alternative dispute resolution tools such as Mediation, Arbitration and Collaboration, the role of the family lawyer is constantly evolving. Add to the skills list the roles of counsellor, psychologist and tea maker, it is as important now as ever to find the right approach for the client and to use the correct tool available for the case.

Jane has particular expertise in high net worth divorce cases, including those involving business and immigration issues. As the ex-Chair of Forces Law, an organisation dedicated to providing specialist legal advice to the armed forces, she can advise on divorce matters for military personnel.

For a confidential discussion about your situation, contact Jane on 01243 787899 or email jane.hodge@andersonrowntree.co.uk