We cannot agree on counselling for our child – What will the court decide?

Posted on 12th January 202312th January 2023 by McAlister Family Law

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors

How will I get a fair divorce settlement if my ex hides their assets?

Posted on 5th January 20235th January 2023 by McAlister Family Law

How will I get a fair divorce settlement if my ex hides their assets?

A common worry that those divorcing have is that their ex will hide assets to prevent them receiving a fair divorce settlement. Thankfully most people who get divorced are honest about their financial circumstances, but what if they are not? Here, Partner Fiona Wood discusses what you can do to if you suspect your spouse is hiding assets throughout financial settlements.

Before a financial settlement is negotiated it is usual for both spouses to give full financial disclosure, confirming all their assets, company interests, pensions, incomes and liabilities. Documentation needs to be provided to support what they state their financial circumstances are, including bank statements for all accounts for at least the last 12 months. If assets have not been disclosed it is often possible to prove this from the documents that have been provided, such as regular transfers from one bank account to another account that has not been disclosed.

Sometimes people give assets to friends or family, shortly before they divorce, in an attempt to exclude them from the divorce settlement. If an asset has been transferred to another person at an undervalue within a period of three years before the divorce, the onus is on the person who did this to prove that it was a legitimate transfer that was not done to reduce their ex’s financial claims. If they cannot prove this, a judge can overturn the transfer, or they can add the amount that has been lost back into the matrimonial pot.

If you are genuinely concerned that your ex is about to give away an asset or transfer it out of the country, you can apply to court for a freezing order. You need good evidence that this is about to happen, to successfully obtain a freezing order, but it is an order that can be made in court proceedings.

Sometimes one spouse has complicated finances, often of an international nature, and their ex is concerned that they will not provide a true picture of their assets. In this scenario you can do some research yourself, looking at Companies House and at the Land Registry in the UK, both of which are accessible to the public, and their equivalents in some other countries. I had a case where one spouse failed to disclose a property that he purchased in Florida, but as there is a public land registry in Florida, we were able to show that they owned this property.

There are also professionals who specialise in assets tracing, on an international scale, who use all legal means available to track down assets owned in the UK and across the world. Even if they cannot locate specific assets, they may be able to provide enough information to enable you to convince a judge that there are hidden assets and that this should be taken into account within the divorce settlement.

If you are concerned about your ex hiding assets to reduce your financial claims on divorce, there are several ways in which you can investigate this and there are legal remedies available to you if it transpires that they have done this or they are about to do this.

Understandably Judges are very unimpressed by those who do try to hide assets. There are likely to be cost orders made against them. Also, as Judges have a broad discretion when it comes to deciding what a fair financial settlement is, so the judge may order that they receive a less generous settlement than they would have received if they had not tried to hide assets.

If you have already obtained a financial settlement, but it comes to light that your ex failed to disclose some of their assets whilst you were negotiating that settlement, the financial settlement can be reopened. There are significant consequences for those who try to hide assets. Don’t do it!

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

The call for fewer Fact-Finding Hearings

Posted on 23rd May 2022 by McAlister Family Law

The call for fewer Fact-Finding Hearings

In response to recent news, Associate Melissa Jones looks at the comments made by the President of the Family Division, Sir Andrew McFarlane at Resolution’s annual conference in Birmingham.

Sir Andrew McFarlane looked at the “default position” in cases where domestic abuse allegations are made and the need to have a fact-finding hearing. His comments were “There was an urban myth among some judges that the Court of Appeal in HN said there needed to be more fact-finding. That needed to be clarified.”

The court must at all stages of the proceedings, and specifically at the FHDRA, consider whether domestic violence is raised as an issue, either by the parties or Cafcass (Child and Family Court Advisory and Support Service) or otherwise. The Court will decide whether a fact-finding hearing is necessary by reference to the revised Practice Direction 12J Child Arrangements & Contact Order: Domestic Violence and Harm, which sets out what the Family Court should do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party or that there is a risk of such violence

or abuse.

If a Finding of Fact Hearing is required, then this is distinct and separate from other hearings. It can be a lengthy process and on average can last anywhere between 1-3 days. In some of the most serious cases of alleged domestic abuse it can last well over two weeks.

Such hearings, often seen as “mini-trials” can be financially taxing not to mention emotionally difficult for the parties involved. It is not an easy task, and a lot of time and preparation is needed coupled with the potential of such hearing causing further damage to the already fractious relationships of the parties.

There is a fine line to be drawn but care should be taken when pursuing the need for a Finding of Fact hearing and the underlying message it that it must be “necessary”. The court has a significant workload as it is, and it is only right that the court prioritises cases that Sir Andrew McFarlane refers to as those that “really do need to be heard”.

If you are affected by any of the issues raised here, please get in touch today. We are here to help you.

Court and contact with Children – What is the process?

Posted on 19th May 202219th May 2022 by McAlister Family Law

Court and contact with children – What is the process?

Are you feeling like you are on a constant contact rollercoaster, trying to agree arrangements with the other parent or carer, and knots of worry tangle you up each week? Here, Nicola Bradley breaks down the process of applying for a Child Arrangements Order and what a successful application can mean for those struggling with contact.

Does the following apply to you? Are you asking yourself if you will get to see your child? Perhaps your message is going to be left on “read” with no response. Are you always getting messages late so that last minute plans have to be made, or feeling like you are an on call babysitter and there is no structure in place. Maybe you have attended or proposed mediation, as well as other forms of Alternative Dispute Resolution (ADR) but this has not been successful.

What can you do in this situation? It might feel like whatever you have tried before has only been met with more complications when trying to organise contact. But when you have tried everything else and nothing has worked, there may only be one option left; Court.

Should I apply to the Court?

It is common for parents to start giving themselves a hard time when court feels like your only option. But it is important to remember that being a parent or carer, although a great privilege, is incredibly challenging, and court intervention can sometimes be required to allow for a firm arrangement to be put into place. Most people see court as a last resort, but it is a real option in resolving contact issues, putting the welfare of the child at the forefront and making sure that the right outcome is found.

So what happens next?

An application for a Child Arrangements Order (CAO) is made by completing the court’s C100 form. A CAO can define who the children live with; who the children spend time with, including how often and whether that contact is supervised or not; and any indirect contact such as letters or facetime calls, including their frequency.

You can also use the C100 to apply for a Specific Issue Order (SIO) if you would like the court to decide on a particular issue, such as where the child should go to school or what surname they should have. It is also used to apply for Prohibited Steps Orders (PSO) which prevent the other parent from performing a certain action, such as removing the child from the jurisdiction.

Again, the welfare of the child is paramount concern for the court and the court has to have regard to the Welfare Checklist contained in s1(3) Children Act 1989.

the Children and Family Court Advisory and Support Service (“Cafcass”) may also be involved in your case. Cafcass are an independent body appointed by the court to make recommendations based on what is safe and, in the best interest of the child(ren). After an application is issued, Cafcass will usually speak to the parties involved and prepare an initial safeguarding letter in advance of the First Hearing Dispute Resolution Appointment (FHDRA).

In some cases, particularly where the issues are narrow, it is possible that matters could be resolved at the FHDRA. More often, the court will use the FHDRA as an opportunity to listen to the parties’ positions and make directions for further evidence to be obtained, and/or for Cafcass to conduct a more detailed safeguarding analysis known as a Section 7 Report, in advance of a Dispute Resolution Appointment (DRA).

The court typically lists DRAs for 60-90 minutes to try to enable agreement/a final order, if possible. If not, the matter will be listed for a contested final hearing before the court can determine the final child arrangements.

Whether or not the matter proceeds through to a final hearing, the court process is not a short one and generally takes between 6-12 months to complete, sometimes longer depending on the complexity of the case.

If you are experiencing difficulties agreeing arrangements for your children, please contact us as soon as possible. Our experienced family law solicitors will help you in trying to achieve the best possible outcome.

Do children always live with mum after a divorce?

Posted on 5th May 202224th January 2023 by McAlister Family Law

Do children always live with mum after a divorce?

Do children always live with mum after a divorce? Here, McAlister Family Law Associate, Melissa Jones, discusses how the courts make their decisions when it comes to a Child Arrangements Order and how the best interest of the child is taken into consideration.

In today’s modern society it is quite an antiquated idea that the court will automatically make a Child Arrangements Order, for the child(ren) to live with the mother above and beyond the children’s father or any other care giver.

That might come as a surprise to you when you look at the statistics** below:

89% of Parents with Care were female and 87% were under the age of 50
88% of Non-Resident Parents were male and 79% were under the age of 50

The above** was taken from https://www.gov.uk/government/statistics/separated-families-statistics-april-2014-to-march-2021-experimental/separated-families-statistics-april-2014-to-march-2021-experimental

Of course, times have changed and 15-20 years ago, the answer to the above question would probably have been yes. Not that it was the right thing or that it was defined in law, but that was the experience and sign of parents’ roles at that time.

That is why it is sometimes a surprise to parents, who are either in court or contemplating a court application to hear that it not guaranteed that the court will make an order for the child(ren) to live with them.

Whilst a high proportion of family law cases today normally involve disputes between the children’s mother and father, it not uncommon for cases to involve other parents/care givers such as:

Civil partners/Same sex partners
Non-Civil Partners- second parents for example
Grandparents
Aunts
Uncles
Extended family members

How does the court decide who a child should live with?

If you find yourself in the situation where you cannot agree arrangements with the other parent, you can make an application to the court for one of the following orders:

Child Arrangements Order- for the child(ren) to live with you or
Child Arrangements Order- for the child(ren) to spend with you

The law currently presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

The Best interests of the child

Associate, Melissa Jones, recalls one of the earliest cases in her career, in the year 2011 when the Family Court granted a “Residence Order” to the father in a family law dispute as to where the child should live. Whilst the terminology might have changed, with the application now being referred to as an application for a Child Arrangements Order, she makes the following point “it should not have come as a surprise, then or now; the court’s decision making has been and continues to be based on what is in the best interests of the child”.

The most important consideration of the Court, and one which you should keep in front of mind, is that it will always consider what is in the best interests of the child, as opposed to any perceived “rights” of any of the adults involved.

The Court will determine the facts and consider the Welfare Checklist to help it decide upon what is in the child’s best interests. This Welfare Checklist includes things like the below:

the child or children’s age and maturity
physical and emotional needs of the child(ren)
wishes and feelings of the child
any harm which the child has suffered, or is at risk of suffering
capabilities of the parents to meet the physical and emotional needs of the child(ren).

In law, it is never a “one-size-fits-all approach”. Every case will have its own set of circumstances and the court will also have regard to the individual needs of the child(ren).

Shared care

In the Family Court there is a presumption of continued parental involvement by both parents, often referred to as shared care. Some parents are now used to a “shared care arrangement” or this can be ordered by the court.

Whilst for some families this may mean an equal division of time, this may not work for other families and sometimes parents often mistake shared care as meaning an absolute and strict division of time (7 days with you, 7 days with me). The children’s needs are paramount and the best interests of the children will always be at the heart of any and all decisions made.

So, can you tell me, do children always live with the mother?

The short answer is no. There may of course be times when the court says this is in the best interest of the child(ren) but equally there may be times where the court says the children should live with the father. Another example is that the court orders “shared care” so that the children spend their time between two households.

At McAlister Family Law we have the experience, compassion, and energy to achieve the best possible outcome for you. Please get in touch today. We’re here to help you.

Olivia Wilde – The Danger of an Envelope

Posted on 28th April 2022 by McAlister Family Law

Olivia Wilde – The Danger of an Envelope

Whilst working on stage in Las Vegas, Olivia Wilde was served with court papers relating to the custody arrangements for her children. Here, Melissa Jones looks at the case making headlines around the world.

The children’s father, Jason Sudeikis who had brought the application in the USA did not appear to be aware that this would happen as it has been reported:

““Mr Sudeikis had no prior knowledge of the time or place that the envelope would have been delivered as this would solely be up to the process service company involved, and he would never condone her being served in such an inappropriate manner,” the source added.” https://www.standard.co.uk/news/world/olivia-wilde-custody-papers-cinemacon-las-vegas-jason-sudeikis-b996780.html

What happens with service of papers in the UK? Can I be served at work?

It’s a possible worry for a lot of parents but not one that has seemingly featured in the family courts in England and Wales. If this was a situation, within the English Courts, with service of court papers, the starting point is making sure you have a current correspondence address for the respondent (parent/carer) to your application to the court. This allows service, to them privately, at their place of residence. They can then open the documents in private and away from the children.

Once your application is issued, the court will take steps to send your application to the respondent at the address provided and/or your legal representative can arrange for this to be served upon the respondent by post.

The new system effectively allows couples to file a sole or joint application for divorce without blame and without having to wait the 2-year period. The legal test to show the marriage has “irretrievably broken down” still must be passed, but without the necessity to blame the other for couples who want to start the divorce process straight away. It has yet to be seen how much “evidence” the court will need for the legal test to be passed. The overall aim is to make the process more streamlined, by reducing the level of animosity, encouraging couples to work together (hence the ability for a joint application) and largely removing the ability to defend the proceedings.

This may make the process less emotionally charged. The actual procedure after the initial application will be similar – the court, if satisfied the marriage has irretrievably broken down will confirm the parties are legally entitled to the divorce and grant a “Conditional Order” (which is to replace the “Decree Nisi”). Then there will be a Final Order to bring the marriage to an end replacing the “Decree Absolute”.

In terms of the “impact”, the aim of the new system is clearly to reduce conflict and enable parties to work together in the divorce process (in the same way that they are encouraged to do so in agreeing the arrangements for their children and their financial arrangements).

In terms of streamlining the process, it has yet to be seen how this will play out. There is a concern about some new time limits that have been put in place to obtain the “Conditional Order”. The new law says this cannot be granted for 20 weeks (circa 5 months) from the divorce application. This time limit was not imposed under the old system so as practitioners, we will need to consider whether this may delay the process slightly (this being the important part of the proceedings where a legally binding consent order can be obtained). This is something that will become clearer as we adapt to the new system.

In summary, the “impact” of the new system, has really yet to be seen. We can all see and understand the reasoning behind the new system and the overhaul of the previous system is certainly a long awaited and positive step. The actual implementation of the system will however be a learning curve not only for individuals wanting to divorce under the new system, but family lawyers and the judiciary and it is certainly an interesting time for us all.

No-Fault Divorce – Will it really have an impact?

Posted on 20th April 2022 by McAlister Family Law

No-Fault Divorce – Will it really have an impact?

This is possibly one of the biggest questions asked by not only individuals wanting a divorce but also us as family lawyers. Here, Frances Bentley discusses whether the new reform will really have an impact both for lawyers and those going through a divorce.

The new “no fault divorce” system came into effect on 6 April 2022. It is by far the biggest change in the family law world seen in the last 50 years.

At the time of writing this, the impact “no fault divorce” has yet to be seen, so it will be interesting to review this question again once we have really seen how the new system plays out in reality.

It is certainly hoped that the impact and change will be significant. Under the “old system”, (the divorce system in place before 6 April 2022) for individuals to show that there had been an “irretrievable break down” of a marriage, one of five facts had to be evidenced, including unreasonable behaviour, adultery, desertion, 2 years separation with consent and 5 years separation. If couples therefore wanted to draw a line under matters and commence divorce proceedings straight away, then one party had to effectively “blame” the other (unreasonable behaviour and adultery being the most common). Otherwise, if they did not want to do that, they had to wait for 2 years to use the fact “two years separation with consent”. Many couples still opted for this with the intention of keeping things “amicable”.

There was however a level of concern expressed about this unnecessarily prolonging a process which was already emotionally draining for couples, especially those who wanted to achieve finality. There was also a knock-on effect in terms of the financial matters – if couples had to wait two years to even start the divorce process, then a legally binding consent order resolving the finances (which its needed for couples to “sever” financial ties against the other) could only be made once a Decree Nisi had been pronounced. Effectively for those couples, the Decree Nisi could not be granted until 2.5/3 years after since separation. This didn’t seem fair bearing in mind people need to be able to move on and to protect themselves financially.

The archaic system of “blame” (particularly adultery and unreasonable behaviour) also heightened emotions in an already stressful process, increasing the temptation to “defend” divorces. A big change under the new system is that defending a divorce is no longer an option, unless there is a real legal issue in dispute, for example in respect of jurisdiction issues, or for example, the validity of the marriage is in dispute.

No-Fault Divorce – The Procedure and Timeframes

Posted on 13th April 202229th April 2022 by McAlister Family Law

No-Fault Divorce – The Procedure and Timeframes

On the 6th April 2022, the law surrounding divorce was reformed. Here, Heather Lucy discusses the changes to divorce procedures and timeframes, and addresses the concerns of those couples who are already in the process of a divorce.

What do I have to do?

The new legislation means that people wanting to divorce will no longer have to provide evidence to show the court that their marriage has broken down irretrievably. Instead, the court will accept a statement from either, or both, spouses as sufficient evidence.

If you and your partner mutually agree that your relationship has broken down, but you wish to keep matters between you amicable, you may jointly file an application for divorce. You are both then termed ‘applicants’ as opposed to having an ‘applicant’ and a ‘respondent’.

Alternatively, one person can make the application for divorce. This does not necessarily mean that your case will be less amicable as there is no assignation of blame in this process. It does, however, mean that the person applying is more in the ‘driving seat’ of how fast the application is progressed.

Once the application has been issued by the court, there is a new waiting period of 20 weeks before the conditional order stage which is intended to give divorcing couples the time to reflect. This is the time when you can make an application to the court for them to say that, unless given reason otherwise, you will be entitled to a divorce after a second waiting period. It also enables them make an order about your finances.

It there is one applicant, they can apply for the conditional order by themselves. In a joint application, the applicants can apply for a conditional order together. If relations have soured and one person does not want to make the application, an application can be made by the other alone. This application must be served upon the other applicant who is then the ‘respondent’ for the rest of the proceedings.

There is a mandatory waiting period of 6 weeks after the conditional order before you can apply for the final order, bringing your marriage or civil partnership to a formal end. If there are two applicants, they can apply jointly for the final order. If there is one applicant (and the original application was made jointly), they must give 14 days’ notice to the other person (who becomes the respondent) that they intend to apply for the final order. In a sole application, the applicant can give notice and apply for the conditional order. If they do not do so within 3 months of being allowed to do so, the respondent can make an apply instead.

How long will it all take?

As above, there is a 20-week waiting period from the time the application is issued. There is then a second mandatory waiting period of 6 weeks from the conditional order before you can apply for a final order. This means that the shortest time in which you can get divorced will be 6 months. Unfortunately, this does not factor in court processing times which can vary greatly so it is sensible to anticipate some delay.

I am already in the process of a divorce, what happens to my case?

If your divorce is already in the works, you may be concerned about whether your proceedings are still valid and what this reform means for you. The good news is that the government has a plan. Your divorce will continue under the old regime. You will, if your matter proceeds to its conclusion, still get a decree absolute. If you did want to restart the proceedings to change the divorce to be ‘no-fault’, you would incur a fee for an application to withdraw your current proceedings and then the court costs for issuing the new proceedings.

No-Fault Divorce – The Positives and Negatives

Posted on 6th April 202229th April 2022 by McAlister Family Law

No-Fault Divorce – The Positives and Negatives

Here, George Wilson looks at the positives and negatives of the new reform and discusses whether it’s a step in the right direction.

It is hoped by many prominent legal minds, including Baroness Hale, that the new no-fault divorce reform will reduce the relative stress and anxiety felt by separating spouses when going through divorce proceedings. It is also hoped that, by freeing up the headspace of those divorcing, more care, time, and attention will be given to tackling the other inevitabilities of a marriage breakdown, such as childcare issues and how to divide assets and income.

Many petitioners (the spouse issuing the divorce petition), under the current system, are forced to focus on the worst aspects of their relationship in order to recall the unreasonable behaviour of their other half for the sake of the divorce petition. Often, citing the perceived unreasonable behaviour of one spouse can create unnecessary animosity between divorcing couples, during an already difficult period in their lives, no matter how anodyne those particulars of unreasonable behaviour may be. Unfortunately, this seed of animosity and ill-feeling can then grow and spread throughout other aspects of the separation, making it more difficult to agree on matters involving money and children without the need for acrimonious court proceedings to be instigated. Rather than moving forwards towards their own independence, many parties are emotionally stuck in the historic difficulties of their relationship, when asked to emphasise them in writing.

Divorce is seen by many people as a failure or a loss. But what about those trapped in an abusive or controlling marriage? Well, it is hoped that the new reforms will allow for a more accessible divorce system that will empower those who may have previously feared contested or protracted proceedings against an abusive partner, and the trauma that such proceedings would likely cause. Survivors of abusive marriages, or those trapped in unhappy relationships, will be able to end their marriage much more easily under the new reforms.

What about the negatives?

Despite the new reforms being thrust into the limelight with positives a plenty; no-fault divorce has not escaped controversy. Just as the positives for a no-fault system have been entrenched for decades, so have the negatives. In short, many opposers of the new reforms believes that no-fault divorce ultimately threatens the sanctity of marriage, either religiously or morally. It is worried that due to the more straightforward, and simple, divorce process, many parties will simply look to divorce during any rocky patches in their relationship rather than fighting on and working things out. People may simply opt to legally separate.

Furthermore, it is argued by many that the new no-fault system will allow abusive spouses, or those who have exhibited unreasonable behaviour or have committed adultery, to essentially get away with it without being held accountable. Often, as highlighted previously, an ‘offending’ spouses will have their unreasonable behaviour laid bare within a divorce petition. The new system will allow ‘offending’ spouses to avoid this and, in turn, will prevent the spouse on the receiving end of the unreasonable behaviour from having their say. It must be said that it is extremely rare for the unreasonable behaviour of one party to have any bearing on the financial aspect of a divorce.

One criticism of the new reforms, despite their relevance in todays divorce heavy society, is that there are more prominent issues within the Family Justice System, including reform needed in respect of children cases (both privately paying cases and those funded by the state) and an overhaul of how domestic abuse cases involving the complexities of issues such as coercive control and gaslighting.

Whether the new reforms will be a success is yet to be seen. It is important that legal practitioners, and the Court, get to grips with the new system as soon as possible to allow for a smooth transition.

No-Fault Divorce – What does this mean?

Posted on 1st April 202224th January 2023 by McAlister Family Law

No-Fault Divorce – What does this mean?

On 6 April 2022 the law is finally changing in relation to Divorce. This change is welcomed by family lawyers and practitioners as it sees an end to the divorce “blame game” and finally allows married couples to divorce without having to blame their spouse for the breakdown of their marriage. Here, Brigid O’Malley explains what the new reform means and what changes to expect.

Currently, the law which dates back to 1973 (under the Matrimonial Causes Act 1973), requires the Petitioner of divorce to prove their marriage has broken down based upon one of five facts, which are:-

Adultery
Behaviour
2 years separation, with their spouse’s consent
5 years separation
Desertion

Therefore, currently if you want to issue divorce proceedings before a period of two years has passed you must issue on the basis that your marriage has broken down either because your spouse had committed adultery or because of their behaviour. You would have to be able to evidence your spouse’s adultery or they would have to admit to it which many people feel uncomfortable or unhappy about doing. For behaviour, you have to provide a statement setting out the reasons why your spouse’s behaviour caused the breakdown of your marriage. In short, you have to blame them for the breakdown of the marriage. This sadly then can lead to bitterness between the parties and ill feeling before they have even begun to discuss and resolve arrangements for the children of the marriage or the financial matters.

So what changes; what does no fault divorce mean?

In short, it means that you can now issue divorce proceedings without having to blame your spouse. Instead, you will issue divorce proceedings by providing a simple statement that the marriage has irretrievably broken down. No evidence will be required in addition to this statement of irretrievable breakdown.

This will hopefully reduce the negative impact and hostility that protracted divorce proceedings can have on families and in particular, their children.

The changes also allow, for the first time in the Courts of England and Wales, the ability to issue divorce proceedings jointly with your spouse. This truly is reform to the law and will hopefully see far more separating couples coming together in a respectful manner to formally end their marriage. However, it may not always be appropriate to apply jointly but we can advise you further about your options.

The law has also changed to prevent the respondent (the spouse of the applicant for divorce) from disputing whether the marriage has broken down. This means a respondent can no longer defend the divorce save for very limited circumstances which are:-

They dispute that the Court of England and Wales has jurisdiction to conduct the proceedings
They dispute the validity of the marriage or civil partnership itself
The marriage or civil partnership has already come to a legal end

Again, this reform is most welcomed as previously there was concern that perpetrators of domestic abuse, for example, were able to use their ability to defend divorce proceedings to continue their control over their spouse. This is now not possible.

Overall, the reform to the law feels very positive and will hopefully allow more couples to divorce amicably and respectfully. It will certainly remove the initial tension and hostility that can arise from the current requirement to blame your spouse in a divorce petition. It will hopefully also help children whose parents are separating as it will remove the damaging belief that one of their parents has been the sole cause of the marriage breaking down. Hopefully, parents will be able to work together more collaboratively to resolve all the issues that arise when couples separate; reducing the potential negative effects separation brings upon children.