Category Archives: divorce

Story of the no fault divorce

No fault divorce: don’t blame me!

Hello readers,

I have previously written a post about this subject, but it is becoming more relevant than ever. I thought, therefore, that I would update you as to the position in respect of the ‘No fault divorce’. On 13th October, Richard Bacon MP recommended an amendment to divorce law which would enable divorcing couples to make an application for a no fault divorce, on the basis that they both agree that there is no fault to lay at the feet of either party for the breakdown of the marriage. The proposal would allow a divorce “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“. On 13th October 2015, MP’s passed the first reading of the No Fault Bill.

Discussions and proposals to introduce a no fault divorce, have spanned over nearly 2 decades; so this is by no means a new idea. However, when legislation providing for a no fault divorce was passed in 1996, the law was eventually repealed, when a change in Government meant that the provisions were never actioned.  There have been countless debates about whether a move to a no fault divorce would diminish the sanctity of marriage by making it easier for people to divorce which may then increase the number of divorces. However, it now seems as though we are taking a step, in what I suggest is the right direction. Mr Bacon himself has made it clear that he does not wish to make achieving a divorce easier. Instead, he would simply like to create a no fault option for couples who are divorcing.

The current law states that there is one ground for divorce, which is the irretrievable breakdown of the marriage. This ground must then be supported by one of 5 facts, which are as follows:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. 2 years separation with consent; and
  5. 5 years separation.

It is easy to see that in the absence of 2 years separation and adultery, the only ground to be relied upon is unreasonable behaviour if the parties wish for the divorce to proceed immediately. However, it is an unreasonable behaviour petition that can often provoke unnecessary hostility and acrimony. This can even be the case where parties have initially expressed a wish to handle the proceedings in a conciliatory manner. The fact of the matter is that even if the marriage has broken down naturally, one party will ultimately have to be blamed. In this sense, the current law can be confusing. This is particularly so when parties are acting as litigant in person (without representation).  Solicitors are trained to make the particulars as benign as possible, drafting the particulars of behaviour in a subtle and sensitive way. However, even with the help of a solicitor, arbitrating blame where there is none can set proceedings off on the wrong foot, often to the detriment of any children involved.

I will keep you all updated on the progress of the No Fault Divorce Bill and welcome your opinions on the matter!

Photo by Nancy L. Stockdale via Flickr under a Creative Commons licence

Financial claims after divorce: will it ever be too late?

A recent Supreme Court decision has highlighted the necessity to ensure that financial matters are resolved during the course of divorce proceedings. This is particularly true for those acting in person after the cuts to legal aid.

Vince v Wyatt  saw a woman whose marriage had broken down almost 30 years ago granted the right to pursue an application for financial remedy from her ex-husband who had, since the divorce, accrued substantial wealth. The Supreme Court unanimously allowed the appeal and directed that the belated claim should proceed in the Family Division of the High Court.

The couple had met in 1981 when she was 21 and he was 19 and married a year later. They had a son and Ms Wyatt already had a child from a previous relationship who was accepted as part of the family. The family by no means lived a life of luxury and mainly subsisted on benefits. The couple separated in 1984 and Mr Vince embarked on a travelling lifestyle, leaving Ms Wyatt to bring up the children without any financial help.

The couple divorced on 26 October 1992. Unfortunately, the Court file was somehow misplaced and therefore it is unknown whether a financial order was made at the time or indeed whether the financial claims were dismissed. The Court stated that they had no reason to believe the latter option, especially without her consent or receipt of a capital payment. The Court made an educated guess that Ms Wyatt had included in her petition applications for the full range of orders as this was usual practice. This was in contrast to Mr Vince’s assertions that the Court ordered he “did not have to pay [the wife] any money”.  It was from the late 1990s onward that Mr Vince’s business became extremely profitable rendering him a multi-millionaire.

Ms Wyatt had two more children and the parties’ son went to live with Mr Vince in 2001. Despite Mr Vince’s new found wealth, Ms Wyatt in comparison continued to struggle financially. Following her application to the Court, Mr Vince made a cross application to strike out her claim for financial remedy.

Pursuant to Rule 4.4 of the Family Procedure Rules a substantive application may be struck out if:

  • The Court may strike out a statement of case if it appears to the Court that:
  1. That the statement of case discloses no reasonable grounds for bringing or defending the application;
  2. That the statement of case is an abuse of the Court’s process or is otherwise likely to obstruct just disposal of the proceedings.

Upon consideration of the power to strike out it was noted that the Family Rules do not contain a corresponding power of summary judgement as per the Civil Rules. This was significant, as the family rules deliberately omit an equivalent power. The Court decided that it was incorrect to say that there were no reasonable grounds for bringing the case, in the absence of hearing any evidence. It was found that it was not a “frivolous, scurrilous or obviously ill-founded application”, nor was it an abuse of the Court’s process.

Furthermore, the strike out application made by Mr Vince was dismissed and, on Ms Wyatt’s application, the Court ordered Mr Vince to make interim periodical payments to her, or indeed “directly to [her] solicitors”.

Mr Vince voiced his upset about the decision, stating that he was “disappointed that the Supreme Court has decided not to bring the case to an end”, three decades after the marriage ended. He expressed a desire to move on and added that people should not have to “look over their shoulders” after divorce.

However, the ruling is significant. Resolution chair Jo Edwards said that the Supreme Court has made it clear “that the draconian power to strike out family proceedings simply does not exist”, although she did stress that the merits of such applications will be dealt with on a case by case basis by the Courts.

This ruling makes it clear that financial matters should be resolved as quickly as possible during divorce proceedings. It would appear that otherwise those who make substantial amounts of money post-divorce will be exposed to “potentially opportunistic claims”. If Ms Wyatt’s application had been dealt with at the time the marriage broke down, it is “likely that a capital clean break would have been achieved” which means that she would have no option to essentially come back for more now.

Ms Edwards added that it would be interesting to see how the Court handles Ms Wyatt’s claim. It is “more likely to succeed on the basis of her contributions through caring for the children after the marriage breakdown”, but the fact that she has left it so long before bringing her claim to the Court may go against her, she added.

Indeed, the Court made it evident that Ms Wyatt would face formidable difficulties in her claim. This was for a number of reasons including the short length of the marriage, the low standard of living enjoyed by the parties, the period of time that has passed since the divorce, the fact that the Mr Vince accrued his wealth post-separation and that the Ms Wyatt made no contribution to this wealth. Nevertheless, the claim is to proceed and I will be sure to keep you all updated!

To those divorcing or divorced already, make sure the financial claims are finalised!