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No fault divorce plans could make financial settlements easier

ANALYSIS: Divorce reforms in England and Wales go some way to introducing "no fault" divorce, but more clarity and development is needed as the UK government's consultation on reform progresses.26 Sep 2018

No fault divorce is helpful in achieving financial settlement quickly and making divorce less acrimonious, both priorities for high net worth individuals. It can also help keep private details out of court hearings, which is important to well-known people.

If divorces are lengthy and disputed this increases the chances of wealthy individuals dissipating assets, making fair settlements less likely.

The government's 12 week consultation on reforming the legal requirements for divorce proposes replacing the 'fault-based' divorce system with one where the person seeking to divorce gives notice to the court of the intention to divorce, stating their belief that there has been an "irretrievable breakdown" in the marriage. This would replace the giving of evidence about a party's conduct or separation.

The government also proposes abolishing the ability to contest the divorce as a general rule, recognising that the current ability to contest a divorce can be used as a bargaining chip to extract concessions in other negotiations, including those concerning finances.

A contested divorce causes delay, expense and, at its extreme, may result in a party having to remain married for five years before they will be entitled to a divorce regardless of the other spouse's position. Importantly, this can have a knock-on effect on the division of the finances, which cannot be dealt with formally until the first of the two divorce decrees, the decree nisi, has been obtained.

London is known as the 'divorce capital of the world' for its innovative, speedy and generous approach to the division of finances on a divorce, but the divorce process itself has not changed in some 45 years. It is important, if England and Wales is to retain its attractions as a forum for divorce proceedings, that it keeps pace with other jurisdictions, a number of which recognise no-fault divorce. It is therefore welcome that the government is taking steps to address these issues.

There are issues will need to be worked out as consultation on and development of the reforms proceeds. For example, the intention of the reforms is that courts will no longer have to scrutinise evidential detail as to whether there has been irretrievable breakdown of the marriage. However, the consultation paper states that courts would not grant a decree nisi if not satisfied that the marriage had broken down irretrievably.

Clarity is needed about how courts would make that assessment, if the aims of the proposals to simplify and streamline the process are to be achieved. Any conditions under which someone could, as an exception to the general rule, contest a divorce must also be clearly set out.

The reforms are a welcome change to the current situation, where irretrievable breakdown of the marriage must be shown based on adultery, 'unreasonable behaviour', desertion by one party, two years’ living apart and the consent of both spouses, or five years’ living apart.

As a result, if couples want to divorce quickly, the only option available to them at present is to accuse the other of either adultery or some sort of unreasonable behaviour, which can be contested by the other spouse. We have seen this recently in the widely publicised Owens v Owens Supreme Court case in July 2018, in which Mrs Owens was compelled to stay married to her husband until they had been separated for the required period of five years before she would be allowed to divorce him.Mrs Owens' complaints about her husband's conduct had been found by a judge not to amount to unreasonable behaviour and the Supreme Court was not prepared to interfere with that finding.

This process creates acrimony, promotes an adversarial approach and risks the dissipation of assets over the five year period, so the proposed reform is welcome.

Sarah Ingram of Pinsent Masons, the law firm behind Out-Law.com, is an expert in private wealth dispute resolution and specialises in family law.