Divorce: The end of Blame and Shame? by Shakeel Mir | Blogs | The Law House


Divorce: The end of Blame and Shame? by Shakeel Mir

By in All Blogs, Family Law, Property Law Category on October 30th, 2013

A High Court Judge Sir Paul Coleridge has recently stated that family law in England and Wales is outdated and needs reform. The judge stated that the law needs to reflect society as it is now and not as it was in the distant past.

The main legislation covering family law is the Matrimonial Causes Act 1973.  Since then society has changed considerably.  For many people, it seems extraordinary that in this day and age, we still have a law which effectively looks at blame for the break up of a marriage and that it is necessary to provide a ground such as adultery and unreasonable behaviour, when in may circumstances a couple has simply stopped getting on and just want to go their own way.

Maybe couples are far less tolerant of each other than say our parents or grand-parents’ generations were, but this is also a reflection of how society has changed.

There are other grounds available of course, such as desertion (very rarely used) or 2 years’ separation with the consent of the other party to the divorce; or 5 years’ separation without having to get the consent of the other party to the divorce. This might be a long wait for someone who is desperate to get out of a marriage.

Then of course there is the law on co-habitation. There is still a long held view in the public that there is something called a common law marriage, where a couple have been living together but have not married. But there is no such thing. So unmarried couples may find that they are in a difficult situation when it comes to separating from their partner. For example, a person who may have moved in with someone,  in a property owned by that person, and spent several years in the relationship, is not automatically entitled to have a share of the proceeds of the sale of such a property.

Factors taken into account in a marriage breakdown situation, such as the duration of the marriage, incomes, and contributions to the marriage, financial or otherwise, do not apply to a cohabiting couple. This surely cannot be right in a society where so many people choose to live together without getting married.

In many ways though, the law is changing, slowly but surely. Just a few years ago, the idea of a civil partnership, or indeed, even same sex marriage, was something that was simply unobtainable yet we now have laws to govern these. This does reflect a changing society.

Sir Coleridge also believes that attempting to settle matters in a family breakdown should be dealt with much more by way of mediation and arbitration, and to avoid the current way financial matters are settled in the courts.

Perhaps a comprehensive change in law is something that just might be needed.