Long overdue no fault divorce reform issues in the United Kingdom have been sidelined due to an increasingly volatile political situation. Family lawyers in the United Kingdom are concerned that constitutional upheaval because of Brexit means that some family issues will not get the attention they deserve. The issue of no-fault divorce is of particular concern.
Resolution, which was formerly known as the Solicitors Family Law Association (SFLA), is an organisation of 6,500 family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters. Resolution also campaigns for family law reform to the justice system. The national chair of Resolution, Nigel Shepherd, speaking to an assembly of family lawyers from all over the UK, highlighted that the organisation is trying to make sure that no fault divorce does not get forgotten.
Unlike Australia, the UK does not have no-fault divorce.
The No Fault Divorce Movement
The no fault divorce movement in Britain has been gaining momentum over the past ten years. Supporters claim that current divorce laws are outdated and make the divorce process much more difficult and confrontational than it has to be. Family lawyers in Britain are worried that Brexit negotiations are causing issues such as no fault divorce to be forgotten about.
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What is Brexit? It is a word that has become used as a shorthand way of saying the UK leaving the EU – merging the words Britain and exit to get Brexit. The European Union – often known as the EU – is an economic and political partnership involving 28 European countries. In a recent referendum held in the UK, the British people voted to leave the EU.
The departure from the EU will take many years to conclude and the practical and legal implications will be far reaching. There are issues that certainly arise for family law because of Brexit – departure from the EU will likely particularly affect those families where parents are from different EU countries. But the issue of no fault divorce in Britain predates Brexit.
Resolution say they are a body that is committed to developing and promoting best standards in the practice of family law and explores and promotes other ways of resolving family disputes, such as mediation and collaborative law, so that couples have alternatives to going to court. Resolution members abide by a Code of Practice which emphasises a constructive approach to family problems and which encourages solutions that take into account the needs of the whole family and the best interests of any children.
Mr Shepherd commented, ‘There are more than 110,000 divorces each year – every day the government delays, more than 300 couples get a divorce. That’s 600 people, every day, running the gauntlet of a system that actively encourages conflict and blame.’
In 2005 a Private Members Bill was launched to try to get a no fault divorce option introduced. Despite pressure from within the legal profession and the judiciary, the bill failed.
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No Fault Divorce in Australia
The Family Law Act 1975 established the principle of no fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation. No-fault divorce is designed to reduce hostility in a divorce and allow for resolution and mediation rather than confrontation and blame.
The default in Australia’s family law cases is mediation, or Family Dispute Resolution. It encourages people to agree on arrangements without having to go to court. This is in contrast to the United States, where litigated divorce seems to be the default and the UK where you have to finger-point or wait. To divorce in the UK you need to give grounds for divorce, choosing from adultery, desertion, or unreasonable behaviour. Otherwise you need to have lived apart for more than 2 years and both agree to a divorce or you need to have lived apart for more than 5 years if only one party wants to divorce.
Mediation is done privately, as opposed to a courtroom, and the focus is not on ‘winners’ or ‘losers’. Mediation involves you and your former spouse sitting down with an independent third person (a mediator) to attempt to resolve issues in dispute. Couples are discouraged from playing ‘the blame game’. This usually helpful process does not necessarily require that you and your former spouse face each other in same room. The mediator may move between you in separate rooms. It can cover all divorce issues such as parenting arrangements, child support, property settlements and spousal maintenance.
When mediation is unsuccessful, it is then likely that court proceedings will ensue. In Australia, before commencing Court Proceedings concerning children the parties are usually required to first attend mediation (if they haven’t done so already), which is also known as Family Dispute Resolution. Attending mediation is not compulsory when the parties have reached an agreement and are applying for Consent Orders. Nor is it compulsory in the case of family violence or the matter is urgent.
At Divorce Lawyers Brisbane we encourage mediation and collaborative divorce. We aim for clients to pursue a divorce that is as low in conflict as is appropriate. We think this is especially important where children are concerned and we have the expertise to assist parents in reaching agreement about the parenting plan for their children. Our divorce lawyers offer a free, 10-minute phone consultation. Please contact us today!