as reported in family law week, the office for national statistics (OND) has recently published divorce stats for 2015, which confirm the continuing downward trend in the rate of divorce. there were just over 101,000 opposite sex divorces that year, a reduction of about 9% on the previous year and a whopping 34% drop from the recent peak in 2003. good news you might think, on the assumption that stable marriages are best for society and best for the children of those relationship, but unfortunately the overall picture is not that simple. the OND also notes tellingly that the decline in the divorce rate is consistent with a fall in the rate of marriages over the same period. in other words, fewer marriages so fewer divorces, rather than a clear improvement in the general stability of marriage as an institution.
the OND speculates further that the rate of marriage has declined primarily because more and more people are choosing to cohabit and have children together outside marriage, presumably for a variety of reasons. i suppose that’s not necessarily a bad thing if you don’t have strong religious objections, but one does suspect that there’s more incentive for married couples to make their relationships work than for cohabiting couples, who can walk away more easily. apart from any social fallout surrounding divorce, the financial consequences can also be more far reaching. maybe it is sensible to put pressure on couples to make their relationships work, but as a family lawyer i have often wondered if it really is good for children to trap their parents in unhappy marriages.
another problem with cohabitation as a model for living together and having children instead of walking down the aisle is the lack of legislation helping such couples resolve financial issues if their relationship does break down (although the law relating to their children is not so bad if the father is on the birth certificate). government after government has repeatedly refused to introduce laws giving cohabiting citizens even basic legal rights, which has often produced unfairness over the years. a law commission report was commissioned specifically to address this issue, and then its recommendations were ignored. what price family law reform with a hung parliament and an uneasy alliance (or a coalition of chaos?) between the tories and the DUP? as often stated previously in this blog, don’t hold your breath. (see this february’s blog for more)
in passing, the stats also record that there were only 22 divorces between same sex couples in 2015, but this low figure is rather misleading since same sex marriages have only been possible in england and wales since march 2014.
finally, the most common age to get divorced for same sex couples is 40 to 44, for both men and women. hope that doesn’t make you feel uncomfortable.
as reported in my march blog, in the court of appeal case of owens and owens the unfortunate mrs owens failed to convince the appeal judges that her husband’s behaviour as alleged in her petition was so unreasonable that she should be allowed to divorce him. this decision caused shock waves among family lawyers, who for many years had been drafting mild allegations of unreasonable behaviour on the assumption that the courts would effectively rubber stamp the petition, to avoid acrimony and encourage a spirit of cooperation between the parties from the start. the owens decision suggested that petitioners now need to throw the kitchen sink at their spouses in the divorce petition to avoid the risk of the proceedings being dismissed, but at the risk of increasing hostility between the parties. such hostility can easily impact badly on related issues, particularly the kids. what to do?
mrs owens is seeking permission to appeal to the supreme court, the highest court in the land, and so the position could well change again if leave is granted and the matter is re-considered. it should also be noted that defended divorce cases like owens are very rare, and that the vast majority of divorces are undefended even if there are separate disputes over the children or finances. unlike mrs poor owens, where the allegations of unreasonable behaviour are not contested the petitioner (the one who issued the petition) needs to produce very little evidence to prove them.
an excellent association of family lawyers called resolution (resolution.org.uk) has been obliged by the owens decision to review its guidance to members on this thorny issue. resolution has long campaigned strongly for the introduction of no-fault divorce ie the ability to get divorced without having to wait for 2 years or to make any unpleasant allegations at all. (for a clear explanation of the present law go to https://www.justdivorce.co.uk/undefended-divorce.) resolution’s “guide to good practice on drafting documents” produced pre-owens states tellingly that “The courts will almost always allow unreasonable behaviour petitions based on mild particulars to proceed.” is this advice still correct? resolution says yes, but encourages its members to stay in touch with the judges in their local courts to keep tabs on how the wind is blowing.
it seems to me that a behaviour petition containing an adequate minimum threshold of mild allegations is still very likely to succeed, provided that it is not defended. however, if a defended trial does take place then owens is the starting point and indeed may have raised the bar. we at justdivorce.co.uk have so far experienced no difficulties with behaviour petitions drafted for our clients, although our online services depend on the consent and cooperation of the other spouse.
i suggest that a pragmatic and cost effective solution where the petitioner cannot be sure the petition will be undefended is still to draft a petition based on mild allegations, but to add the following clause at the end of part 6 – “permission to serve further allegations of unreasonable behaviour will be requested if a defence is served.”
for a further explanation of these issues go to https://www.justdivorce.co.uk/unreasonable-behaviour.
this blog goes to print as the nation wrestles with the fallout today from a hung parliament after the spectacular failure of theresa mays’s gamble in calling a snap election. what chance family law reform now? what chance a decent lord chancellor for that matter?
in previous news I reported the commencement in january of a scheme in the east midlands divorce unit piloting the introduction of a court based system for issuing divorce petitions online. at present, although justdivorce.co.uk have automated the process as far as possible, it is still necessary to print off documents created online and to file hard copies of the divorce petition and supporting documents at court when issuing proceedings. even the pilot scheme still requires paper versions of the forms, and it is not yet possible to lodge electronic copies. the scheme is presently limited to allowing selected petitioners to fill in an online questionnaire, the answers to which then generate the divorce petition ready for printing. similar technology has been used by justdivorce.co.uk throughout this decade.
early signs are that the pilot scheme is showing encouraging results, which is perhaps not surprising given the general on-going tech revolution. a recent blog post from a divorce service manager at the court service stated that the feedback had been very positive. consequently new features are planned, such as the useful ability to pay the court fee on issue of a divorce petition (currently £550) online. the scheme is clearly still at an early stage but it seems almost inevitable that it will proceed eventually to the next level, subject of course like so many things to the outcome of the general election next month.
modernisation of the divorce process is also revealing itself in other ways, following on particularly from the creation in 2015 of 11 regional divorce units where all divorce petitions must be issued – previously proceedings could be issued in any of the numerous family courts around the country. up to now however, where an application for a financial order is issued within the divorce proceedings the whole case is usually transferred to the respondent’s local family court, often resulting in delay and occasionally lost court files or other confusion. a further pilot scheme beginning this month, this time in Southampton, is trialing the “delinking” of divorce and related financial remedy proceedings. in other words, the divorce petition file will remain in the divorce unit where the petition was issued and a new file will be created specifically for the financial proceedings in the local family court. the cynic in me thinks this makes two paper files to lose instead of one, plus even more scope for confusion unless there’s a reliable system for each court keeping the other informed. hopefully such pessimism is misplaced, but as ever the success of these sensible measures depends on the court service being properly staffed and funded in the face of austerity. apparently the system will be introduced throughout the court system in june of this year if the signs are good.
applications for financial clean break consent orders such as those handled by justdivorce.co.uk will however continue to be filed at the relevant specialist divorce unit, and so this reform should not affect the online service we provide – see https://www.justdivorce.co.uk/financial-clean-break.
are you fed up of democracy yet? yesterday the prime minister shocked the nation and even shocked the Westminster bubble by calling a snap general election on 8 june. this gloomy news follows hot on the heels of the last general election 2 years ago and the famous (or infamous if you are a remoaner) brexit referendum vote last year. various reasons for this abrupt u turn by the PM have been put forward. some of them may be virtuous, such as mrs may’s wish to have her own clear mandate from the british public, rather than one inherited from david cameron (remember him?).
however it is hard to disagree with the Scottish nationalists’ claim that her real motive is a political gamble to crush labour as an effective opposition party, in the belief that they are not presently electable with jeremy corbyn at the helm and listing to port. the tories may well be right, although this outcome might benefit the conservative party more than the country as a whole. democratic power cycles of 4/5 years are short termist enough as it is, without being slashed even more for political expediency. in these strange times however it takes a brave soul to predict the outcome of any election with a degree of certainty – ask the liberal opponents of president trump.
hence the immediate political landscape will be dominated for the next 2 months or so by the election and then for the following 2 years by the great brexit adventure. these negotiations will certainly affect family law directly in many ways, for example in relation to the test for jurisdiction ie the power of the courts of England and wales to accept and deal with divorce and civil dissolution petitions (see https://www.justdivorce.co.uk/jurisdiction). there will also be a serious impact on cross border recognition and enforcement of family law judgements between our jurisdiction and other EU states – a whole ream of new measures will be needed to replace the existing regulations.
given this backcloth, what chance is there of a new government introducing any non essential and controversial reforms to family law, such as the introduction of no fault divorce championed so forcibly by resolution (resolution.org.uk)? maybe about as much chance as mr corbyn choosing red curtains at number 10 come june.
on 24 march the court of appeal dismissed an appeal by mrs owens against a high court decision refusing to grant a decree nisi of divorce in relation to her petition based on unreasonable behaviour. the distinguished bench included sir james munby, the most senior family court judge. under the relevant statute (the matrimonial causes act 1973) mrs owens had to convince the court that her husband had behaved so unreasonably that she could no longer be expected to continue living with him and that as a result the marriage had irretrievably broken down. the court of appeal decided that she had not satisfied the unreasonable behaviour test, agreeing with Judge Robin Toulson QC’s description of Mrs Owens’ allegations against her husband as being ‘minor altercations of a kind to be expected in a marriage’. the judges perhaps surprisingly rejected her argument that the court should consider the cumulative effect of the behaviour, rather than just the seriousness of each separate incident.
the court of appeal judges accepted that their decision traps mrs owens in a loveless marriage but emphasised that they were obliged to apply the law as it is now, correctly stating that it’s the job of parliament not the judges to change the law. all well and good, but the reality is that judges change and create law all the time in the way that they interpret and apply acts of parliament – consider for example the “sharing principle” in financial remedy cases. one wonders if the judges were in fact well aware that their decision might put additional pressure on parliament to change the law in relation to the grounds for divorce (see below).
we should remember however that, if all else fails, a spouse can almost certainly get a divorce after 5 years of separation, since there are very few possible defences to a divorce on this basis. hence mrs owens should secure her divorce eventually, although this may be of little consolation to her now as she contemplates her legal bills and a loveless marriage.
while giving judgement sir james munby suggested that the existing law dating back to 1969 is badly out of date and in need of reform, which is hardly a well kept secret amongst family lawyers. he revisited the ongoing debate about the proposed introduction of no fault divorce and even queried whether spouses should be able to obtain a divorce outside the court process altogether. he lamented the hypocrisy and lack of intellectual honesty under the present system, presumably referring to trumped up unreasonable behaviour or adultery petitions being used to obtain an immediate divorce, rather than waiting at least 2 years for divorce on some other ground (see https://www.justdivorce.co.uk/undefended-divorce). resolution (resolution.org.uk) has also been pushing hard for a change in the law to allow no fault divorce, but do you think any government will grasp this socio/political hot potato in the midst of the current brexit legislation meltdown? no, me neither.
i reported in last month’s blog the determination of sir james munby, the senior family division judge, to introduce online divorce within the court service as part of a radical modernisation programme for the family court. hot on the heels of this announcement we now learn that a tentative pilot scheme has been launched in the east midlands divorce unit, running from 27 january to 28 july. the scheme allows for certain matrimonial applications to be filled in online via the web, and a practice direction has been issued to explain to lawyers and litigants in person how to go about it (PD36D).
the procedure relates to divorce petitions only at this stage, and once the application has been generated it must be printed off in hard copy or saved electronically and then lodged with the court. the pilot scheme appears to be very limited at this stage – a toe in the water – the results of which will no doubt be reviewed once it has finished in july.
all this is very encouraging, and impressively quick and decisive for a public service organisation. however, a possible fly in the ointment is the recent announcement that sir james munby, who turns 70 in july 2018, is to retire next year. he certainly seems to have led the drive towards modernisation of the family court with enthusiasm and commitment and one wonders if the pilot scheme is in danger of being kicked into the long grass (think law commission reports) once sir james is no longer around.
we shall see.
it’s fair to say that sir james munby, the most senior family division judge, is a progressive and dynamic influence on the judicial system. one of his recent worthy crusades has been an energetic push to harness modern technology of the type used by justdivorce.co.uk to get the family court online. i recall attending one of his lectures around a year ago when he spoke enthusiastically about this happening in the near future, with me being sceptical as to how this would happen in the present climate of public cuts rather than public spending.
to his credit however, on 3 january the times announced “a pilot project to allow divorce proceedings to be issued digitally for the first time”. the article went on to state that the plan would be tested before being launched across england and wales in june, with the aim being to enable divorce petitions to be lodged online. scanned copies of other required documents such as marriage certificates would be uploaded and attached to the electronic file. the scheme will only apply to divorce proceedings however, and disputes about children and finances (and presumably also defended divorce petitions) will still be dealt with at hearings in court or in mediation etc.
this would indeed be a welcome development. justdivorce.co.uk already provides online divorce to the extent possible, in that all our documents are prepared and viewed/printed online and almost of all of our communications are by email. however at present all communication with the court has to be by post. therefore, although we draft all required letters and court forms electronically, hard copies then have to be printed off and sent to the court by our clients. our systems work well, as we believe our clients testify, but clearly the process could be streamlined even more if digital filing at court became possible.
on the back of this development, some family lawyers suggested that digital divorce proceedings would at last pave the way for no fault divorce ie the ability to get divorced immediately without needing to allege adultery or unreasonable behaviour against the other spouse. i am not so sure about this. the possibility of fully online divorce is no doubt attractive to government because it is likely to save money (that holy grail) but that doesn’t mean ministers have the stomach for a long battle over no fault divorce with the religious lobby in the house of lords. it’s not a vote winner and brexit looms large over all parliamentary business at present. predictably, the christian institute quickly asserted that no fault divorce would further weaken the institution of marriage.
hot on the heels of the times announcement however came further news which suggested that we had all rather got carried away. tony roe of tony roe solicitors stated that he had made further inquiries of hm courts and tribunals service, which indicated that a completely digitalised divorce service would not be arriving any time soon. he estimated that at best it might be possible to complete an online petition at court by the end of summer 2017. mr roe also pointed that the new procedure will need to be accompanied by changes to court rules and procedure and that no such amendments have yet been published.
so, there can be little doubt that paper based divorce applications will become a thing of the past in the not too distant future, simply because it’s the obvious way to go in our brave new digital age. but maybe don’t throw away your stapler and hole punch just yet……..
the office for national statistics (ONS) has recently published it’s annual divorce statistics for england and wales, which show that in 2014 there were just over 111,000 divorces. this is a drop of 3.1% compared to the previous year, and the rate of divorces has also fallen in the same period to 9.3 divorces per 1,000 men and women, a reduction of 5.3%. around 60% of these petitions were based on unreasonable behaviour or adultery, rather than one of the available no fault grounds for divorce such as 2 years separation and consent.
the ONS speculates that these year on year reductions in divorce rates may well be a result of the ever increasing trend towards cohabitation, which has presumably also led to a reduction in the rate of marriage. of course the failure rate for cohabiting (as opposed to married) couples is not reflected in these stats, although the effects would be the same for any children of such relationships. hence the reduction in the divorce rate is not necessarily evidence that married relationships, and therefore possibly society in general, are becoming more stable.
other research does indeed show that the rate of cohabitation continues to increase. it may well be that the failure rate among unmarried couples is higher than the rate of divorce given the lack of legal obligations created by such relationships, which are almost non existent at present. as resolution (resolution.org.uk) rightly points out, this makes it even more important than ever for parliament to introduce some basic protection for families falling out of failed cohabiting relationships, particularly where one of the parties has suffered significant financial disadvantage. what chance of that happening in the midst of brexit/article 50 frenzy?
hey ho (ho).
happy new year from justdivorce.co.uk – we hope 2017 is a good one for you.
is there such a thing as a good divorce? yes, if you can cooperate fully with your other half and/or if you choose a member of resolution (resolution.org.uk) to act on your behalf. resolution is a group of family lawyers genuinely committed to improving the divorce experience for their clients, being the people who actually have to go through the legal process of getting un-hitched. resolution has a carefully drafted code of conduct representing best practice in this specialised area of law, which all members agree to comply with on joining the organisation. the code has recently been revised and updated and resolution is using this as an opportunity to publicize it to the general public. the rules emphasize the importance of adopting a conciliatory approach, of not increasing the temperature unnecessarily, not personally insulting any party involved in the proceedings and of putting children first etc etc. all good sensible stuff.
the initiative has been named “good divorce week”, as a way of emphasizing that clients can choose to have a good divorce experience or a bad one, depending on matters such as choice of laywer. why on earth choose a bad one, you may ask? unfortunately not every factor in the process can be controlled and for example you can’t veto a spouse’s (or civil partners’s) choice of lawyer. some people want their day in court and a rottweiler solicitor regardless of any advice they may receive to the contrary, perhaps to gain revenge for perceived bad behaviour or in the (mistaken) belief that this approach will achieve a better financial outcome. but yes, proper adherence to the code can well result in lawyers charging lower fees which, contrary to daily mail belief, good solicitors are always happy to do if the result is a satisfied client. for more information visit http://www.resolution.org.uk/code/.
having said that, i do more than occasionally deal with resolution members who only seem to pay lip service to the core values of the group, although resolution does have a complaints procedure where breaches are alleged.
resolution has also published a manifesto to clarify its aims and intentions, which presently include campaigning for the introduction of no fault divorce (a topic covered in previous blogs by this author) and for improving the rights of unmarried couples which are presently almost non existent. these are important and worthwhile objectives and resolution works hard to achieve them, for example by lobbying members of parliament and publicizing the unfairness and difficulties caused by the law as it now stands.
we are proud to support good divorce week and proud to be members of resolution.
this month’s blog re-visits a regular topic in family law circles, namely no-fault divorce. the house of commons library published a briefing paper in September, reminding us of the present grounds for divorce and looking at the arguments for and against no-fault divorce. so firstly, what is no- fault divorce? under the present law, one can only get an immediate divorce by alleging unreasonable behaviour or adultery. if you want a divorce by mutual agreement with no guilty and innocent party then you have to separate for at least 2 years before you can untangle the knot. the introduction of no-fault divorce would mean that someone could get divorced for example by showing simply that the marriage had completely broken down, without having to prove that the other party has been guilty of bad behaviour or adultery.
understandably, a lot of people don’t want to wait 2 years to exit an unhappy marriage. research carried out last year by resolution (resolution.org.uk) found that over half of divorce petitions were blame based. tellingly, over a quarter of those questioned admitted that the allegations contained in their petitions weren’t true, presumably so that they could divorce immediately. there has long been a strong body of opinion favouring the introduction of no fault divorce, with heavy hitters behind the proposal including resolution, many senior family judges and the family mediation taskforce. the last serious attempt to change the law took place in 1996, when a reforming statute was effectively wrecked and made unworkable by the religious lobby in the house of lords (an un-elected body of course). recently there have been attempts to introduce no-fault divorce private member’s bills in parliament, for example by richard bacon.
those in favour of reform argue it is clearly undesirable to force divorcing couples to make unpleasant allegations against each other at a time when they should be encouraged to cooperate as much as possible, especially if there are children involved. also, it seems to me that the making of false allegations to get round the existing law undermines the legal process and respect for the law in general, which can’t be a good thing either.
opponents of change argue that if it becomes easier to get a divorce then this will undermine the institution of marriage, encourage people to jump ship from relationships that might otherwise be saved, and therefore increase the social fallout resulting from failed marriages.
there does seem to be an increasing momentum towards a change in the law recently, although one suspects there is little appetite on the part of any government to grasp the nettle, particularly a government with a small majority as now. however things may be different this time, partly due to the enthusiasm displayed by the head of the family division sir james munby to introduce a family court online divorce process (see september blog). such a welcome development is bound to be helped if the law of divorce itself is simplified. if the reform lobby can jump on the back of digitization and commoditised legal services then this time they might finally get over the line.
personally i can’t see what can be gained by either trapping couples and indeed their children in unhappy marriages or forcing them to slag each other off as part of the process of separating. having practiced family law for 38 years i am in favour of no-fault divorce, provided that any new structure continues to emphasise the importance of marriage and that getting married is a serious and life changing decision.
presumably the briefing paper has been issued to encourage further debate and so justdivorce.co.uk will await further developments with (vested) interest.