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"No fault divorce"
The Times has in recent weeks launched a campaign, in conjunction with the family lawyers' organisation Resolution, for the reform of modern day family law. The current divorce laws date from 1973 and require one party of divorcing couples to provide evidence of the other person's "fault", that is particulars of unreasonable behaviour or adultery. Otherwise if the parties want to divorce by consent, it is necessary to be separated for 2 years. If your spouse won't consent to a divorce after 2 years' separation, then without quoting a "fault" ground, you must wait for 5 years.
The Manor Law approach
At Manor Law we regularly advise on how to issue a petition in a civilised fashion, even if the other party is likely to be difficult. The general advice if using an unreasonable behaviour ground (which does not require any minimum period of separation) is to tread a fine line between keeping examples mild enough to be agreed but strong enough to meet the legal test to obtain a divorce. Generally, however angry you may feel at what can sometimes be appalling and hurtful behaviour by your spouse, there is almost nothing to be gained by expressing that anger in a permanent written form in a divorce petition, and much to lose in a contested, bitter, divorce. Concerns over behaviour that may have an impact on the children, or on financial division (although rare) can be expressed later on if needed.
The proposed change to the law is simply that if one party in a married couple wishes to end the marriage formally, that it should be possible to do so without any blame being apportioned. Watch this space for any government response –governments have been petitioned in the past but failed to engage with the concerns.
The Times is also spearheading a campaign for better protection for the rights of cohabitants – some of those 6 million people who live together in family relationships but who are not married. Baroness Hale, the first female President of the Supreme Court, has publicly stated her support for reform. Baroness Hale has first-hand experience of the injustices that can arise in a small amount of cases.
What are the current rights?
There are very few rights for cohabitants in the context of a relationship breakdown. If the family home is owned in one party's sole name, it is extremely difficult to displace the legal presumption that the other person has no financial interest in that home. This might be despite one party providing years of support as a home maker and carer for the children, at the expense of their career and pension contributions, and to the benefit of the financially stronger party. By contrast, in a marriage, the law recognises the value of caring for children and all assets are available for sharing. No such rights exist for cohabitants, nor is there any such legal recognition of a "common law marriage". Whilst this may be fair, and what the parties intended by not getting married, a small number of cohabitants suffer real unfairness and injustice on separation, and it is this that the Times and Resolution are campaigning about.
It is however worth noting that there are financial claims that can be made for children of unmarried parties, whilst the children are dependant although some of these claims may be less straightforward than if the parties were married.
Advice for cohabitants – or if you are thinking about cohabiting
If you are separating and unmarried, please contact one of our specialist family lawyers for detailed advice about your individual situation. However, more importantly before any change in the law, if you are thinking of moving in with a partner, be proactive about rights, and protect your position with a Living Together Agreement. You may want to protect a property from a partner, or protect your own position for contributions you plan to make in the relationship.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles