Leading legal figures demand end to ‘unjust’ divorce laws

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Nov 17, 2017
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Senior judicial figures today call for an end to “unjust” and “outdated” divorce laws as The Times launches a campaign to modernise family legislation.

Lord Mackay of Clashfern, the lord chancellor to two prime ministers, and Baroness Butler-Sloss, the former lord justice of appeal and president of the High Court family division, join other legal grandees to condemn the “antediluvian, damaging” 50-year-old laws governing marital break-ups.

They are backing The Times’s demand for sweeping reform, including:

  • The abolition of the need to allege fault or blame during divorce proceedings, which has seen people locked into loveless marriages for years;
  • The end of the so-called “meal ticket for life” maintenance awards;
  • Statutory backing for pre-nuptial contracts.

The call comes two weeks after a landmark report by the Nuffield Foundation, which condemned divorce laws in England and Wales for forcing couples to make false and exaggerated allegations of adultery or bad behaviour, causing bitterness and harming the mental health of children.

Baroness Shackleton of Belgravia, the barrister for several senior royals, and Baroness Deech, the former chair of the Human Fertility and Embryology Association, are also among those backing divorce reform as part of The Times Family Matters campaign, which joins forces with the former High Court judge Sir Paul Coleridge to push for new laws to modernise and protect marriage.

Sir Paul, chairman of the Marriage Foundation, an organisation that has pushed for more support for couples experiencing marital difficulty in an attempt to stem the tide of family breakdowns, said marriage needed to be for “everyone from all walks of life, not just the better off”. “We must urgently do something about the laws on marriage and divorce. These are antediluvian and no longer fit for purpose,” he said. 

“Our chief concern is to address the impact of the breakdown of relationships, whether couples are not, particularly where there are children. These breakdowns have devastating consequences for both adults and children that can last for decades.”

Sir Paul Coleridge says the law needs to “produce solid commitment, whether civil partnerships or marriage”

Jeremy Young/The Sunday Times

Former family judge leads reform campaign

Divorce laws that govern about 100,000 break-ups a year are undermining marriage because people see the institution as a “very expensive arrangement" both to enter and leave, Sir Paul warns today.

Sir Paul said the 50-year-old legislation on divorce was out of step with modern society. “You do nothing to encourage stability via marriage by having a public perception that it is a very expensive arrangement to get into, and only via an expensive and out of date system can you end it, if sadly it fails,” Sir Paul told The Times.

Marriage needs to be seen as a modern arrangement for everyone from all walks of life, not just the better off, he said. “And people should have the model for the committed and responsible relationship they want, not just the state-designed model. What we are advocating is a wider range of options, which also produce solid commitment, whether civil partnerships or marriage, with or without pre-nuptials.

“How much longer does the UK want to stagger on with laws on family life that utterly fail to meet the needs of our time?”

Sir Paul, 68, who was a family High Court judge for ten years until he left the bench to focus on Marriage Foundation, added that the divorce system was not only costly for couples, it also fuelled acrimony, hostility and pain and damaged the possibility of long-term relationships in the interest of children. He said that the urgent need for reform was highlighted by the “steady stream of cases before the courts, which have raised concerns about issues such as grounds for divorce, rights and remedies after divorce, recognition of pre-nuptial contracts, heterosexual civil partnerships and rights for cohabiting couples”.

Scotland leads the way 

The last attempt to reform the divorce laws was 20 years ago and its architect, Lord Mackay, believes the time is ripe for another go.

Legislation enshrined in the Matrimonial Causes Act 1973 is increasingly under attack as no longer fit for purpose. Under the act the only ground for divorce in England and Wales is that the marriage has irretrievably broken down, and to prove that the petitioner must show at least one of five reasons. Three of these – adultery, behaviour and desertion – are based on fault.

To avoid the need to cite fault and acrimonious allegations of blame, couples must wait two years; or if one of them disagrees with the divorce, it is five years.

In 2015, some 60 per cent of English and Welsh divorces involved allegations of adultery or about behaviour. In Scotland, where different procedures and rules apply, it was only 6 per cent. Couples north of the border only have to wait one year where there is consent to a divorce and two where there is no consent.

The Times Family Matters manifesto

The Times supports the institution of marriage, but a reform of laws in England and Wales is needed both to bolster family stability, to end injustice and to remove acrimony from divorce. Necessary reforms include:

  • Scrapping of fault-based divorce laws, allowing divorce within a year where both sides agree, and two where they do not, as in Scotland;
  • Ending the outdated and patronising “meal ticket for life” that can result from laws on splitting assets and awarding maintenance after divorce, except where hardship would be caused;
  • Giving pre-nuptial contracts the backing and force of statute. At present they are non-statutory, which leads to further uncertainty and bitterness when marriages fail;
  • Extending civil partnerships to straight couples so that they can have the same security as married couples should they wish. Civil partnerships are offered only to same-sex couples at present;
  • Create some rights for long-term unmarried couples who break up. This would remove injustices that occur when one partner is left without any right to financial award or maintenance, possibly after many years of living together.
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