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Catherine Bourne
In April 2022, long over-due law reform will take blame out of the divorce process, but we need to go further now to address the way divorce and separation impacts the entire family, not just the parents.
I am regularly asked to advise French and international couples on the protective agreements available to them before they marry and whether they need an English or French drafted agreement. They are often surprised to learn that it isn’t possible to draft a global prenuptial agreement which would be enforceable throughout the world, wherever they move to in the future. It is all the more surprising to French clients who learn that their trusted and routine contrat de mariage is not automatically enforceable in divorce proceedings in England.
Despite no longer living full-time in the UK, it is often the case that expats are still subject to the English court system in the event they divorce, says Stacey Nevin, senior associate in the Family & Divorce team at Kingsley Napley.
Anyone who has visited a family lawyer will be aware that it is a highly discretionary area of law. Part of the reason for this is that much of what guides a judge’s decision, and indeed a lawyer’s advice, are the cases that have come before them. Of course, there are statutes and binding law that judges must follow, for example S1 (1) Children Act 1989 ‘[…] the child’s welfare shall be the court’s paramount consideration’, but case law provides invaluable guidance to family practitioners. Our judicial system allows flexibility so that when it comes to the interpretation of statute the courts can evolve and progress in line with society.
The Divorce, Dissolution and Separation Act 2020 (the DDSA) comes into force on 6 April 2022, bringing about no fault divorce, dissolution and separation. It is the biggest change to the divorce process in almost 50 years, aiming to reduce the opportunity for conflict in relationship breakdown.
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