You may have read about the law regarding divorce having changed and this came into effect on Thursday. The change is basically to change divorce from a fault based action to a non fault based one. Let me explain.
In the past if you wanted to get divorced you had to come up with one of five grounds and the majority of those involved one party alleging that the breakup of the relationship was due to the fault of the other. The grounds with which most people were familiar were adultery, so the other person having slept with someone else, or unreasonable behaviour, so the other person’s behaviour was so unreasonable as to cause the relationship to break down. What this legal framework suggested was that one party was completely to blame for the breakup of the relationship and the other party was completely innocent. The strange thing is that there was no real benefit to establishing fault so it didn’t mean one party got more money or got more time with the children; in fact it didn’t really have any practical significance at all other than to upset the party who was being blamed. This was not a good state of affairs. It was not even a realistic state of affairs, because in truth in the vast majority of breakups it is not as simple as saying it is all one person’s fault. Most relationships breakup for a number of factors and those factors involve both parties. It is not always one person’s fault or the other. There are lots of reasons aren’t there, people grow apart, people change, people want different things, people meet someone else who they want to spend their lives with instead. It is all awfully sad, but it is not as simple as attributing the breakdown to one factor or one person’s fault. So the previous legal system was not in line with the reality of most breakups.
Furthermore, as I say above, it served to make a bad situation worse. The simple fact of a relationship breaking up is very difficult for everyone involved. Not just the parties but other family members and in particular children. There will be a lot of heartache, fallout and suffering. The ripple effect is endless. To make a bad situation worse by having to come up with a list of the ways in which the other person was unreasonable, or be the recipient of a list of the ways in which you were unreasonable, is simply going to make matters worse and is not helpful in any shape or form.
So now instead of alleging that the breakup of a relationship is someone’s fault, either one or both parties in the relationship can just simply state the fact – the relationship has broken down. One doesn’t have to give reasons why; one doesn’t have to explain why. It is simply put out there that the relationship has broken down irretrievably.
There then raises the question well is it irretrievable or is this a hasty act and premature? To deal with this the law has built in a reflection period of 20 weeks. So, in case you have simply made a hasty and premature decision, you will have 20 weeks to think about it before you can move to the next stage of the divorce process, so a cooling off period of sorts, and a nice long one. Some people who decide to break up do change their minds, so this period will give those people the chance to give it another go.
It will be debated whether this simplification of the divorce procedure will make more people get divorced. I don’t think that could be the case at all. It just makes divorce a factual process, not a stone throwing one. In truth, that is what it should be because it is not divorce itself that requires time and attention, it is the consequences it has and they are effectively twofold in practical terms. There is the division of finances to think about and the arrangements for any children of the relationship, and really this is where any available resources should be spent, in managing these issues.
In an ideal world, where both parties accept that the relationship has broken down and divorce is inevitable, if they can continue amicably (within reason) to discuss the practical arrangements following divorce concerning finances and children and agree those issues, it is far better for all. People think that lawyers want to argue about how a couple is going to divide their money and make arrangements for the children but that could not be further from the case. It is far preferable in all the circumstances for the parties to agree these issues and then if they want that legally codified lawyers can help them do that. Lawyers only need to step in when the parties are not able to agree those issues either amicably or at all and third party representation is needed. This is where things get complicated and the real arguments begin.
The problem always with finances is very simple. The family has a certain amount of income, maybe from one or two people’s earnings, and that income is applied to the family’s needs by way of housing, food, children’s needs, holidays, Christmas, whatever. As soon as the couple divide, that same income needs to be applied to a greater set of needs, not least two households, possibly both with the capacity for the children of the marriage. Therefore same income, greater outgoings. Sometimes obviously other partners come along and bring with them their own income and then the financial position will stabilise, but that is not always the case. So, it is almost inevitable that finances will be stretched and this will mean compromises and possibly a lesser quality of life in some respects. The division of finances is a difficult exercise and I think it is fair to say that usually everyone ends up worse off financially, and that this will hurt.
The last but by no means least issue to consider is arrangements for any children of the marriage and this is where the heartbreak really comes for me. Children are the real victims of relationship breakups, although often that gets little or no acknowledgement from the warring parties. A child’s life will be turned upside down, I don’t mean just by arguments and heartache, I mean in terms of the practicalities of the child’s living arrangements, travel arrangements, school arrangements, activities and all the rest of it. If couples possibly can, it must be preferable to ensure as much continuity of the child’s life as possible. So if a child can continue to live in the same home it lived in principally then that is an advantage. If a child can continue going to the same school, likewise. Ideally if the child can continue with its usual activities, hobbies, times with friends and also relationships with wider family on both sides, this means the amount of change is minimised and some threads of the child’s life remain constant. I also believe it is important that the child does not witness conflict and is not part of it, nor is the child presented by one partner’s negative views of the other. A child does not choose its parents. A child must take whatever positives it can from all situations and in particular each parent. Children should not have to form opinions on their parents as to whether they are good, bad, etc. That is not what the parent child relationship is about. The child should be able to focus on its own needs.
If I gave a client any advice during the divorce process it would be these two things:
- Keep your dignity. It will be hard. There will be times when it will be almost impossible, but keeping it is invaluable as once lost you will not be able to regain it easily.
- Never say anything negative to a child about its other parent, however awful that other parent is. In due course the child will grow into an adult and be able to come up with its own views about both parents, including you, but when it is a child let it think of you both as parents, not opponents, even if you have chosen not to be together.
So coming back to no fault divorce, the time and attention of relationship breakups should be put to the issues that are really important and that is those regarding children and how everyone will live from a financial point of view. The reasons for the breakup are not relevant to that process. You can think about then, debate them and argue about them, but they no longer form part of the legal analysis of the situation, nor should they.
If we here at Parnalls can be of any assistance to you with your relationship breakup and the necessary legal aspects of it, please call the office on 01566 772375.