Divorce and Separation Bill: ‘I have seen divorce blame game turn amicable splits toxic – the law ne…
Under current UK law couples cannot divorce immediately purely on the basis that they no longer wish to be together – but this could change
“Current divorce rules derail discussions – you can start with a couple on good terms who want to sort things out and then the process gets in the way and creates conflict, animosity and it throws things off track,” family law expert Nigel Shepherd said.
As the former chair of Resolution, a body of legal professionals working to resolve family law issues, Mr Shepherd has been campaigning for the best part of 20 years for the law to change to stop couples having to “play the blame game” in order to split and, with new legislation passing through Parliament, this could be about to change.
Under current UK law – the the Matrimonial Causes Act 1973 – couples cannot divorce immediately purely on the basis that they no longer wish to be together. They must either choose a mutual consent divorce,which forces them to stay married living separate for at least two years, or one must attribute blame to one party of either of adultery or “behaviour”.
Most couples decide to go for the latter as they do not want to wait two years or cannot afford to because the courts cannot release their joint assets until the divorce has gone through. This means one has to attribute blame to the other for the cause of their marriage breaking down which is then used as a reason for the divorce in court records and on legal papers.
If the accused party then chooses to defend this accusation, they are legally able to keep their spouse locked in the marriage against their wishes for five years from separation if they wish.
But the new Divorce, Dissolution and Separation Bill, which is currently having its second reading in the House of Lords, would change this and allow couples to divorce without having to assign blame.
Instead, couples will have a notice period of six months and will not have to give a reason for cases of mutual consent or attribute blame.
Damage done to families every day
For Mr Shepherd, the changes can’t come quick enough because he sees “in my daily experiences as a family law solicitor… the damage the current system does”.
“At the moment you can get divorced if you can show that your marriage is broken down completely but you can’t just turn up and say that we both think it’s over, we want a divorce,” he said.
“Even those people who want to have a consent divorce are generally forced down the grounds of one of those blame games because they either don’t want to wait or they can’t afford to wait – most people can’t put their lives on hold.
“Two years is a long time when you’ve got young children you want to move on, you may need to rehouse and you can’t force the other person to provide for you financially without a divorce. So people who need to get on with these things are pushed into these blame games just to get on with it, even if they don’t want to.”
“Those fault-based grounds tend to make the conflict worse and can throw you off kilter completely,” he said. “They get in the way of being able to sort out your finances and your children arrangements in a calm focused way. You start by having a look at what’s gone wrong, not what you want to do about the future for your family.”
‘When they see it in black and white it’s upsetting’
Mr Shepherd, who is head of family law for Mills & Reeve, has seen many instances where estranged couples who are still friendly have become toxic because they are forced to portion blame on one another.
Although they understand it’s purely a process, couples find it upsetting to see the problems in their relationship written out in court papers and feel obliged to defend themselves.
“You have to give examples and that you know: he picks his toenails in bed, he watches telly and doesn’t let me change the channel when my baking programme comes on. It’s all to do with how it makes you feel, ‘it makes me feel undervalued, I feel that it’s not a true partnership’ you put that down,” Mr Shepherd said.
“So it starts off okay but when they actually see it in black and white and it’s really, really upsetting because it doesn’t matter what you tell them about. It doesn’t matter if I say, look, it’s just a means to an end. Don’t worry about it. The reality is if you see something written down about you on a piece of paper that goes to a court, you’re going to feel bad about it.”
He added: “We’ve seen lots of situations where one side that was really upset and want to cause more trouble – mostly because they’re in a bad place, not because they’re bad people – actually show the contents of the divorce petition to their children, you know ‘this is what your dad has done’.”
Couples can’t afford help
He said there are many others who don’t realise that the reasons for divorce will not impact their financial settlement, or access to children, so they spend a lot of time and money defending the reasons which on,y makes the divorce more stressful.
“That’s a massive problem now because legal aid is basically being scrapped for most family cases so the majority of divorces are dealt with by people without any advice or representation from lawyers at all so they don’t have the benefit of me explaining to them that it’s a game, don’t worry about it, it doesn’t have any impact,” he said.
“So if you are the recipient of a divorce petition your natural instinct is ‘I’ve got to defend it, I got to say something about it because it’s going to make a difference to the kids or with money’.”
“The courts don’t really help them – there’s a number of cases where people have just given up. They haven’t done it right, filled in the forms right or they have tried to defend it and they write four pages to say none of this is true but are not told that nobody’s going to look at it. They just then get the divorce through the door so they feel even more aggrieved that they haven’t had they haven’t been listened to.”
Opposition from the church
He added: “Divorce is stressful at the best of times. The current process makes it more stressful, it adds to the stress, it adds to the conflict, it does nothing to help reduce it, which is what we should be doing.”
The first reading of the new bill, proposed by Lord Keen of Elie for the Conservatives, was on the 7 January in the House of Lords with the second reading following on 5 February.
Despite widespread support for the measures, it has faced opposition from religious figures who have described it as a “marriage-wreckers’ charter”.
Last year, when the initial drafts of the bill were published, the Church of England said the plans have not been “sufficiently thought through” and that it “did nothing to encourage reflection and re-examination of the marital situation”.
Speaking during the House of Lords debate, Lord Bishop of Carlisle warned that making divorce easier could undermine the institution of marriage.