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What does a 'good' divorce look like - when are you dealing with the finances?
The BBC’s A Very British Scandal, aired over Christmas, epitomised the pain and publicity of divorce in the 1960s. Although the Duke and Duchess of Argyll’s story is somewhat extreme, it nevertheless underlines the importance of the upcoming divorce law reforms which are long overdue. Some sixty years later we will finally see the end of the blame game with the introduction of “no fault” divorce in April 2022.
Divorce only became possible through the courts in 1857 (before then it required an Act of Parliament and so also huge wealth and political weight). Divorce cases were heard in public and created tabloid sensations. They pitted husband and wife against each other; if both had behaved badly, the divorce could be refused. They needed a villain and a victim; a guilty party and a wronged party.
Men had to prove their wife’s adultery in open court (and prove they had not colluded with or condoned it); and, predictably, women had the harder task, until 1923, of also proving an aggravating factor, such as incest, sodomy or bestiality.
One creative solution for unhappy couples back then was the “hotel divorce”. Adultery could be legally inferred if there was both “inclination” and “opportunity”. So liaisons were staged (usually by the seaside) with paid third parties and unsuspecting witnesses, often involving nothing more scandalous than a very public promenade and breakfast in bed brought by an unsuspecting chambermaid. This charade, immortalised by A.P. Herbert in his novel “Holy Deadlock”, was illegal and required the couple (and any extras) to commit perjury, risking criminal prosecution.
In 1937, the grounds for divorce (for both husband and wife) were extended to include incurable insanity, wilful desertion, cruelty, life imprisonment and habitual drunkenness. But still each “matrimonial offence” had to be proved in open court.
As society shifted after the Second World War, calls for divorce reform grew louder and the law was changed so that either spouse could base a divorce on the irretrievable breakdown of the marriage. The regime which has applied since then has required the breakdown to be proved by one of five “facts”: adultery, behaviour, desertion, or separation for either five years, or two years if the other party agrees. And although the concept of a matrimonial offence was removed, the fault-based system and the hostile language persist (a spouse still commits (the offence of) adultery).
In practice couples unwilling to wait, but hoping to move on constructively, have been encouraged by lawyers to agree the wording of “unreasonable behaviour” petitions in advance. This “consensual, collusive manipulation” of the law (as described by Sir James Munby, formerly President of the Family Division), was made more difficult following the infamous 2018 Supreme Court case in which Mrs Owens was denied a divorce from her husband, despite describing the marriage as “unhappy” and “wretched”.
This outcome was not a failure by Judges, who faithfully applied the law; but a failure of multiple governments to reform outdated laws; a failure to prioritise families over more palatable, vote-winning policies. No fault divorce was oven-ready in the mid-90s, but it was never brought into force.
Finally though, from April 2022, couples will be able to divorce without attributing blame. They will no longer have to go through a charade or a process which risks unnecessarily increasing the acrimony when a marriage ends. After a six month “cooling off period” their divorce can be finalised online.
That is not to say headline-grabbing court cases about the arrangements following divorce will disappear, particularly as the Family Court seeks to become more transparent. But Judges will no longer be forced to pry into why a marriage has ended and who is to blame. This reform acknowledges the complexity of relationship breakdown and will enable couples to divorce with dignity, without pointing the finger. Crucially, parents will instead be able to focus on reaching agreements about their children and finances, forming a new co-parenting relationship, and moving on constructively.
This article was first published in eprivateclient on 5 January 2022.
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Lauren Evans is a senior associate in the family team with experience of all types of private family work relating to both children and finances. Lauren is also a mediator and helps clients to work through the practical and legal issues arising from family relationship breakdown.
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