Lawyer Monthly Magazine August 2020 Edition

55 AUG 2020 | WWW.LAWYER-MONTHLY.COM THE NEW NO FAULT DIVORCE BILL - WHAT DOES IT MEAN? and despite one party taking the ‘blame’, the reality is that the majority of cases are carried out by consent. Like in the case of Mrs Owens, where a party does contest it is often only relied on to frustrate and can be abused as a means to exert control over an ex-partner. A contested divorce case is not just time consuming, but it also incurs significant legal costs. The bill, therefore, reflects the reality that a vast majority of divorces are agreed and the ability to contest will only increase the temperatures (and is not a means of saving a marriage). 3. New time-lines for divorce The Act introduces a mandatory 20-week periodbetweenfiling thedivorce application and obtaining the conditional order (the first stage of the divorce – formally the decree nisi). The two-stage divorce process remains and the final divorce order (or second stage – formally decree absolute) cannot be applied for until at least 6 weeks from the date of the conditional order. This means that there is a minimum 26-week period (or 6 months) before a divorce can be finalised. Under the new law, therefore, the minimum period to obtain a divorce has been extended by at least three months. The reason for this amendment was said to ‘encourage couples to reflect on their marriage’ and the idea that this could result in some couples reconciling. But this provision arguably ignores the reality that for the vast majority of cases a decision to divorce is carefully thought out and rarely arrived at lightly. Further reform A no-fault divorce regime is without question a significant step in the right direction however there is still a lacuna in the law which leaves many modern families without protection. Today families come in many forms, many couples cohabit rather than get married and children born out of wedlock is commonplace. Despite this, there remains no legal framework that recognises a cohabiting relationship. In the absence of legal recognition or a marriage certificate, land law will dictate the legal ownership of any property. There are no automatic rights of: inheritance; bereavement; pensions right (including widow’s pension), tax benefits or any legal entitlement to spousal maintenance. The next area ripe for reform is the division of money and assets. The courts have an extremely wide breadth of discretion when deciding who gets what on divorce, this is said to reflect the complexity of family life and provide the necessary flexibility to ensure fairness can be achieved no matter the factual matrix. In other jurisdictions, however, the courts are limited to strict rules and division of assets are pre-determined in matrimonial property regimes and by enforceable pre-nuptial agreements. Whilst these systems are more rigid and may not be malleable enough to produce fair outcomes in all cases, these formalised regimes provide much needed certainty. In this jurisdiction, the court’s discretion is so wide that it can be very difficult to predict the outcome of a case. Given there is little certitude as to how a particular judge will determine the issues on a particular day, this can result in more of an impetus to roll the expensive dice in court rather than reach an amicable settlement (which only increases the costs, tensions and stress of divorce). The family courts should retain some mechanism to respond to the factual matrixes of each case given the bespoke nature of family disputes. However, there are ways in which the unpredictability of family cases can be narrowed. Examples include greater enforceability of pre-nuptial agreements and statutory recognition of cohabiting couples. The new Act removes the emotional blame game that our divorce legislation has been founded upon since it was first enacted in 1857, now we must look towards creating a legal system that will provide all families with more security, stability and certainty in times of dispute. Nykol O’Shea Associate, Family Dept., Simons, Muirhead and Burton LLP