In an important development for anyone contemplating divorce the Government has announced that the new system of no-fault divorce will not now be introduced this autumn, but will instead be delayed until next spring.

In an answer to a parliamentary question upon the implementation of the reform Chris Philp MP explained on behalf of the Government that the original implementation timetable had been ambitious and that the necessary changes to the Courts Service’s online divorce system would not be completed before the end of the year. Accordingly, the reform will not come into force until the 6th of April 2022.

Whilst it is welcome that the reform now has a fixed start-date, the delay obviously has serious implications for those considering commencing divorce proceedings.

To recap, the new system will do away with the need to prove that the marriage has irretrievably broken down, for example due to the other party committing adultery or behaving unreasonably. This removal of blame from the divorce process has been widely welcomed.

Instead, all that will be needed is for one or both of the parties to file a document with the court simply stating that the marriage has broken down irretrievably – the court will accept this as proof of irretrievable breakdown.

A minimum period of 20 weeks will then have to elapse before the court can make a conditional divorce order, and a further six weeks must pass before the court can make a final divorce order. No-fault divorces will therefore take a minimum of 26 weeks, longer than a quick divorce can take at present.

Obviously, those wanting to divorce without having to blame the other party for the breakdown of the marriage may now have to wait longer to get divorced, if they have not been separated for two years (under the present system you can divorce after two years separation, if the other party consents).

On the other hand, those who are content to use the present system will obviously have more time to do so, perhaps enabling them to get a divorce more quickly than under the new system.

If you are contemplating divorce you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.  

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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The biggest divorce news of the week is of course that Kim Kardashian has reportedly filed for divorce from Kanye West. This latest celebrity divorce has already filled huge numbers of column-inches in newspapers and magazines across the world.

Our fascination for celebrity divorce seems to know no bounds. But can we actually learn anything useful from them? Anything that may be of relevance to ‘ordinary’ people going through marriage breakdown?

Well, sometimes we can, especially when (to the obvious delight of newspaper editors) the divorce gets ‘nasty’. Hopefully, Ms Kardashian and Mr West’s divorce, if it goes ahead, will not fall into this bracket, but sadly many celebrity divorces do, just as do many divorces involving ‘ordinary’ people.

Watching the awful spectacle of a nasty celebrity divorce play out in front of the world’s media must surely act as a warning to all: don’t let this happen to me.

And you don’t have to let it happen. You are in control. There are many things that you can do to avoid an unpleasant divorce. We have given much of this advice here previously, but it merits regular repetition.

Put the animosity of the breakup behind you – Obviously, many marriage breakdowns involve considerable animosity, and a simple mistake that parties make is to carry that animosity over to the divorce proceedings.

This can take many forms, from making irrelevant allegations against the other party, to seeking unrealistic outcomes. All of which will, of course, simply add to the stress, cost and time that the case will take to resolve.

Obviously, it is easy to say that animosity should be left behind, but hard to do it. However, all parties should try.

Concentrate on what is important – The important things in a divorce case are firstly sorting out arrangements for any dependent children and secondly sorting out the financial settlement.

But all too often parties will get side-tracked by other matters, or by matters that they think are relevant to children or finances, but actually are not. And this is where our next point comes in:

Follow advice – Take the best legal advice you can, and follow it. Your lawyer will tell you what is important or relevant, and what is not, and will ensure that you concentrate on the issues that really matter.

We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Consider mediation – Lastly, remember that court proceedings are not the only way to resolve a family dispute. Try to resolve the matter by agreement, and if that is not possible, consider using mediation as a way of resolving matters.

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It goes without saying that pensions are one of the most important assets on divorce. In fact, in many cases they are one of the most valuable assets, often second only to the former matrimonial home.

It is therefore essential that anyone going through divorce fully understands the issue of pension rights, and what they are entitled to.

But sadly not everyone does understand, with the result that many do not receive their full entitlement.

This applies especially to wives, as demonstrated recently by research undertaken on behalf of the pension provider Legal & General.

The research found that wives are significantly more likely to waive their rights to their husband’s pension as part of their divorce, with 28 per cent of wives doing this, compared to 19 per cent of husbands.

Legal & General rightly say that this could have a significant long-term impact upon wives, particularly as they tend to have less personal pension wealth.

According to the most recent findings from the Office for National Statistics, men currently below the State Pension age have higher (£25,300) median active pension wealth than women (£20,000), and for those aged 65 years and over, median pension wealth for pensions in payment for men is double that for women (£223,933 for men against £112,967 for women).

Unsurprisingly, the research showed that wives are more likely to face financial struggle post-divorce (31 per cent, against 21% of husbands), and worry about the impact on their retirement (16% per cent, against 10% of husbands).

These worrying figures indicate the vital importance of obtaining the best legal and financial advice regarding the issue of pensions on divorce. Clearly wives, especially those at or approaching retirement age, should not be disadvantaged in this way.

In particular, wives need to know the true financial effect of waiving their rights to their husband’s pension, rather than seeking a share of the pension. This is not a step that should be taken without proper advice.

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All divorcing wives (and indeed husbands!) should seek expert legal and financial advice regarding pension rights. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The reader may have noticed in the news that the UK’s transition out of the European Union (‘EU’) was completed on the 31st of December (if not, where have you been?). What you may not realise, however, is that this has significant implications for any family law cases involving the EU.

Just to recap, the UK actually left the EU on the 31st of January 2020. However, there was then a transition period, during which the UK continued to abide by certain EU rules. The transition period ended on the 31st of December.

So what are the implications for family cases involving the EU? (Note that what follows relates only to cases involving the courts of England and Wales.)

There are two main sets of rules that apply to family cases in the EU. One, known as ‘Brussels II’, deals with jurisdiction and the cross-border recognition of judgments. The other, the Maintenance Regulation, sets out rules regarding maintenance cases.

Both sets of rules continued to apply to cases in England and Wales until the 31st of December, but have both now been revoked. This means that they do not apply to any cases starting after the 31st of December.

What does this actually mean? Well, there will be changes in the way it is decided what country’s courts should deal with divorce and children cases, and how court orders relating to such cases made in an EU country are recognised (or not) by the courts of this country. There will also be similar changes relating to maintenance cases, including the enforcement of maintenance orders made in another country.

The details of these changes are quite technical, and are beyond the scope of this post. The thing to take from all of this, though, is that if you are or may be concerned with a family case involving the EU then you really need to instruct an expert family lawyer, who can guide you through the changes. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Finally, it should be mentioned that the rules relating to international child abduction, and the return of abducted children, have not changed, as those rules are incorporated into our law. If your child has been abducted, or if you believe that they are at risk of being abducted, then you should instruct an expert family lawyer immediately – again, Family Law Cafe can help you find an expert.

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As we are sure all will agree, 2020 has been an awful year for everyone. Thankfully, however, there is reason to hope that 2021 will be much better.

And so it is in family law.

The pandemic and resulting social distancing rules hit the family justice system, just as it did every other aspect of society. Court buildings were closed, and judges and court staff had to rapidly adjust to the widespread use of remote hearings, via telephone or the internet.

Whilst the family courts and all involved in the family justice system rose heroically to meet this enormous challenge, inevitably the same volume of hearings could not be dealt with, leading to an increasing backlog of cases.

And justice delayed is a tragedy for all of those families affected, who cannot move on with their lives. This is especially so for the children who have to wait for major decisions to be made about their lives.

But, as with life generally, there is reason to hope that things will be better next year.

Firstly, as we reported here just last week, plans are already afoot to catch up with the backlog of cases. It is, of course, a huge task, and it may well not be completed next year, but hopefully during 2021 there will be a significant improvement in the length of time that it takes for cases to be dealt with.

Another reason for an improvement is that hopefully many court buildings will be reopening, as the danger from the pandemic subsides. This will obviously mean that it will be possible for more hearings to take place in court, rather than remotely.

And it is not just recovery from the pandemic that we can look forward to. There are other reasons to hope for a better family justice future next year.

In particular, no-fault divorce is expected to be enacted in the autumn, the biggest reform to our divorce laws for fifty years. At last we will do away with the need to hold the other spouse responsible for the marriage breakdown in order to get a divorce, and instead be able to concentrate on resolving the important issues such as child arrangements and finances, in a blameless atmosphere.

We wish all who are reading this a safe and happy Christmas, and a better future in 2021.

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The Office for National Statistics (‘ONS’) has published its latest annual statistics for divorces in England and Wales, for 2019.

The headline finding from the statistics is that the number of divorces increased by a huge 18% from the previous year. There were 107,599 divorces of opposite-sex couples in 2019, increasing from 90,871 in 2018.

The ONS does warn, however, that the scale of this increase partly reflects that divorce centres were processing a backlog of casework in 2018, which is likely to have translated into a higher number of completed divorces in 2019.

Nevertheless, the rise in the number of divorces may be significant, resulting in the highest number of opposite-sex divorces recorded since 2014, when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of the Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.

The statistics also show that there were 822 divorces among same-sex couples in 2019, nearly twice the number in 2018. This perhaps reflects that more time has passed since same-sex marriage was legalised in 2014.

Other findings from the statistics were that unreasonable behaviour was once again the most common reason for opposite-sex couples divorcing in 2019, with 49% of wives and 35% of husbands petitioning on these grounds (it was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men), and that in 2019 the average (median) duration of marriage at the time of divorce was 12.3 years for opposite-sex couples, a small decrease from 12.5 years in the previous year.

Kanak Ghosh, of the Vital Statistics Outputs Branch at the ONS commented:

“Same-sex couples have been able to marry in England and Wales from March 2014. Since then, we have seen the number of divorces of same-sex couples increase each year from very small numbers in 2015 when the first divorces took place, to more than 800 in 2019, reflecting the increasing size of the same-sex married population in England and Wales.

“While we see that 56% of same-sex marriages were among females, nearly three-quarters of same-sex divorces in 2019 were to female couples. Unreasonable behaviour, which includes adultery, was the most common ground for divorce among same-sex couples this year as almost two-thirds of couples divorced for this reason.”

You can find the ONS statistical bulletin here.

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Last week we looked at what constitutes a short marriage, and how that may have a bearing upon the division of assets on divorce. But that begs the question: what is a long marriage, and what difference, if any, does that make to the financial settlement?

As we explained last week, one of the factors that the court must take into account when considering what is an appropriate financial settlement on divorce is the duration of the marriage. Of course, that may not just mean that the fact that the marriage was of a short duration may affect the settlement – it can also mean that the fact that it was a long marriage can have a bearing upon what the settlement should be.

So what is a ‘long marriage’?

Again, there is no definition contained in the statute. We therefore have to look at what judges have decided over the years. And those decisions suggest that a ‘long marriage’ is not actually that long, at least by the sort of measure that most people might use.

Whilst most people might not consider a marriage to be long until it has at least reached its silver anniversary, the courts will generally consider a marriage of fifteen years or more to be long, and sometimes even a marriage shorter than that might qualify.

So what difference does it make to the settlement if the marriage is long?

Well, whilst a short marriage may have a bearing, as we explained last week, the mere fact that a marriage may be defined as ‘long’ does not of itself necessarily have a bearing. The ‘sharing principle’, whereby assets will generally be divided equally unless there is a good reason to depart from equality, applies to every marriage that was not a short one, irrespective of how long it was.

But the length of the marriage may have a bearing in other ways.

For example, if one party gave up a career to bring up the family then the disadvantage that they may have suffered in the employment marketplace will be greater the longer the marriage, and they may need to be compensated for that disadvantage, by having a larger share of the assets.

And after a longer marriage the fact that one party brought assets into the marriage may lessen in significance, making it less likely that that contribution will result in that party receiving a greater share on divorce.

In summary, the court will look at all of the circumstances in every case, including the duration of the marriage, and will make an award that it considers to be fair, having regard to those circumstances.

If you want further advice as to what factors may affect your divorce settlement then you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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When the courts divide financial assets on divorce they follow a general principle that an equal division of those assets between the parties should be departed from only if, and to the extent that, there is good reason for doing so.

This ‘sharing principle’, as it is known, leads many people going through divorce to believe that they are automatically entitled to half of the assets. And, to put it the other way around, it leads many to fear that, no matter what, they will have to pay half to their spouse, even if they contributed most of the assets to the marriage.

But what if it was only a short marriage? Will you still have to pay half to your spouse?

Perhaps the best answer is: not necessarily.

When the court decides how assets should be divided on divorce it must have regard to a list of factors, as set out by statute. One of those factors is the duration of the marriage. Thus, the fact that the marriage was short could have a bearing upon the division, meaning that the party who contributed less may get less than half.

But the statute does not define what a ‘short marriage’ is. All we can do is look at the case law to see what judges have decided, although caution is required, as each case is decided upon its particular facts. And it may be surprising to some just how short a marriage has to be for a judge to consider it short.

Whilst there is certainly no ‘cut-off’ point at which a marriage is no longer defined as ‘short’, the cases suggest that any marriage that lasted for more than three years is unlikely to be defined as ‘short’.

Looking at it the other way though, the shorter the marriage the greater the bearing that the marriage’s duration is likely to have upon the division of the assets. Thus, for example, in a recent case a judge who found that the marriage lasted just eight months awarded the wife just 20% of the assets.

It is important to note, however, that if there are children of the marriage then the fact that the marriage was short is likely to be of less importance to the outcome – the welfare of the children and the future contributions of either party in looking after the children will take precedence when dividing the assets.

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If you feel that the short duration of your marriage might affect your financial settlement then you should seek the advice of an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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The Supreme Court has allowed a wife to proceed with a maintenance claim in England, despite divorce proceedings taking place in Scotland.

Charles and Emma Villiers spent almost all of their married life living in Scotland. After they separated in 2012 Mrs Villiers moved to England.

In 2013 she issued divorce proceedings in England, but in the following year Mr Villiers issued divorce proceedings in Scotland. Mrs Villiers agreed to the divorce going ahead in Scotland, and therefore her English divorce petition was dismissed.

However, in 2015 she applied to the English court for a maintenance order. Mr Villiers objected to this, claiming that the English court did not have jurisdiction to deal with the application, because of the Scottish divorce proceedings. However, the English court held that it did have jurisdiction. Mr Villiers appealed to the Court of Appeal, but the Court of Appeal upheld the order. Mr Villiers appealed again, to the Supreme Court.

Last week the Supreme Court dismissed the appeal, by a majority of three to two.

Giving the leading judgment Lord Sales said that the husband’s divorce proceedings in Scotland did not preclude the wife’s maintenance application as they were not ‘related’ actions.

However, giving a dissenting judgment Lord Wilson warned that the decision means that “untrammelled licence” will be “given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case.” Whether this turns out to be so, we will just have to wait and see.

You can read the full judgment here.

Should you go forum shopping?

So can you issue proceedings in England and Wales, rather than another country? And even if you can, should you?

As the fact that this case went all the way to the Supreme Court indicates, the rules on forum shopping are complicated. We could not possibly set them out here. In general, though, you will need some connection with the country where you intend to issue proceedings. It will also depend upon the type of proceedings that are being issued, and whether proceedings have already been issued elsewhere.

But even if you can issue proceedings here, that does not necessarily mean that you should. London may have a reputation for being more generous to wives making financial applications than other countries, but that does not automatically mean that it will be best for wives to issue here (and for husbands to issue elsewhere!).

Clearly, if you are considering issuing proceedings in England and Wales rather than another country then you should take expert legal advice, both upon whether you can issue here, and whether you should. Family Law Café can put you in touch with an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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The Divorce, Dissolution and Separation Bill, under which a system of no-fault divorce will be introduced, has passed through both houses of parliament. The Bill now just requires the Royal Assent before it becomes law.

However, the Lord Chancellor Robert Buckland QC has warned that the new law is unlikely to be implemented until autumn 2021, as “time needs to be allowed for careful implementation”. This will include the making of the necessary rules and procedures to give effect to the law, which will obviously be quite different to the present system.

All of which begs the question: what do you do if you want to commence divorce proceedings? Do you proceed under the present law, or wait for the new law to come in?

At the moment, in view of how far the new law is still away, the answer must generally be that you should proceed now, unless you will have to wait anyway for the requisite period of separation to elapse. (If you can’t or don’t want to issue divorce proceedings now on the basis of the other party’s adultery or unreasonable behaviour, you have to wait until you have been separated for two years if the other party consents to the divorce, or for five years if they do not consent.)

However, as we get closer to the introduction of the new law, then more and more people will no doubt prefer to wait, rather than have to apportion blame for the marriage breakdown under the present system.

And if you believe that your spouse will defend divorce proceedings, then it may be more appropriate to wait, as defended divorce proceedings will not be possible under the new system.

If you want further advice as to whether to commence divorce proceedings you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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After a campaign for reform lasting at least thirty years it seems that we may finally be about to get a system of no-fault divorce.

The Divorce, Dissolution and Separation Bill, which will bring in the reform, is due to have its second reading in the House of Commons today. Whilst some MPs have voiced their concerns about the reform, it has widespread support, and is expected to pass. In fact, it has been reported that ministers are keen to see the legislation receive royal assent as soon as the end of this week.

To briefly recap, the Bill intends to do away with the need to attribute blame in a divorce. It will no longer therefore be necessary (for example) to allege that the other party has committed adultery or behaved unreasonably (at least until the parties have been separated for two years). The Bill also removes the possibility of defending the divorce.

Instead, there will be a procedure whereby when a party applies for a divorce they will simply file with the application a statement that the marriage has irretrievably broken down, and the court will accept that as proof that the marriage has indeed broken down irretrievably. Twenty weeks later the court can make a conditional divorce order, and six weeks after that the divorce can be finalised.

As mentioned, some MPs have indicated their opposition to the reform. However, Resolution, the association of family lawyers, have written an open letter addressing some of their major concerns. The letter can be found here. Hopefully, its contents will help reassure MPs and the Bill will pass, without significant alteration.

Before we get too carried away, however, it should be pointed out that the new law is unlikely to come into effect until some months after the Bill receives royal assent. There will be a lot of regulations to be made, and generally time will be needed to prepare for the new system.

Still, hopefully we will soon have a divorce system that does away with the ‘blame game’, thereby enabling couples to concentrate with less chance of animosity upon the issues that really matter, such as arrangements for children and sorting out finances.

UPDATE: The Bill passed its second reading by 231 votes to 16. It now goes to the committee stage in the Commons.

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