Resolution, an association of family lawyers have put forward four proposals to each of the major parties ahead of the general election. Resolution Chair Nigel Shepard has called for MPs to commit to introducing no-fault divorce, giving cohabiting couples who make up 10% of the population some basic legal rights, more financial clarity on divorce and ensuring fair access to the justice system.
In his letter addressed to the Lord Chancellor, Shepard states that ‘current divorce law does not encourage couples to divorce amicably’ and instead ‘people often have to cite unreasonable behaviour or adultery on the divorce petition’. Under the current law, it is argued that it ‘leads to unnecessary conflict and reduces the chances of reaching agreement on children and financial issues’. Back in 2015, a Bill was introduced into Parliament by Richard Bacon which would allow ‘no-fault divorce’. The No-Fault Divorce Bill would have added a sixth ‘fact’ to ‘make provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts; and for connected purposes’. The Bill did not make it past the first hearing on the 13th October 2015.
The recent case of Owens v Owens illustrated this issue in practice. The court was not satisfied that the marriage had broken down irretrievably, despite Mrs Owens being ‘desperately unhappy’. Sir James Munby, President of the Family Division said in response that aspects of the law were based on “hypocrisy and lack of intellectual honesty.”
In relation to cohabiting couples, the proposal that Resolution has put forward would not grant equal legal status to that of married couples. However, it would provide a ‘safety net’ by introducing a legal framework of rights for cohabiting couples that had lived together but have now split up. This would give cohabitants the right to apply for certain financial orders if they separate.
As to financial clarity, Shepard states in his letter that ‘Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals.’
The letter endorses reforming s.25 of the Matrimonial Causes Act 1973 to add ‘greater certainty on the level and timescale for payment of maintenance, with children’s interests at their heart’.
Finally, Stephenson highlights the issues concerning fair access to justice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has been criticised for impacting on the ability of vulnerable individuals to access family justice. Particular problems relate to victims of domestic violence who, ‘since LASPO, have found it more difficult to demonstrate their eligibility for legal aid to which they are entitled’.