In England and Wales there is only one ground for divorce: that the marriage has irretrievably broken down. Unfortunately the system is based on fault, that is, having to make an allegation against the other party to the marriage.
This one ground for divorce can only be proved in one of 5 ways: for an immediate divorce either that the other party has committed adultery or has behaved unreasonably. The other facts that can be used are desertion for 2 years (not often used), 2 years separation and the other party’s consent or 5 years separation.
The divorce procedure is started by filing out a form called a divorce petition which is sent to the court with the court fee, marriage certificate and, if there are children, a form called a statement of arrangements for the children. A copy is then posted to the other party who has to fill in and return to the court a short questionnaire called an acknowledgement of service which the court then copies to the petitioning party. The latter then has to swear an affidavit saying that the petition is true and then asks the court to progress matters. If happy with the paperwork the court arranges a date for pronouncement of the decree nisi and at the earliest, 6 weeks later, the petitioner can apply for the decree absolute which is the document which formally ends the marriage in law.
Some other court fees connected with divorce have also increased. To defend a divorce petition, called an Answer, costs £255. To obtain the final document which legally finishes the marriage, called a decree absolute, costs £45.
If financial arrangements are agreed, to obtain an agreed order, called a consent order, costs £45.
Depending on your financial position you might be able to get these fees reduced in whole or in part. This leaflet explains how the system works: (Form EX160A).
For example, if you are on income support you will have nothing to pay.
If you have no children and your total income from all sources before deductions is £13,000, you will have nothing to pay. Above certain income levels there is a sliding scale.
The media seem to have been telling us that modern fathers now play a large part in sharing the time it takes to care for their children. But is it true? Are fathers playing equal time in looking after their children?
In his new book, Gideon Burrows, who does share equal care of his children, has spent some time thinking about and researching the answer to this question. He has published his findings in a book called Men Can Do It! His answer to the question is that men are playing more of a role in the upbringing of their children but nothing like as much as we are led to believe is the case. He says, amongst other things, just look at the school gates for example and judge for yourself how many dads are waiting outside school to collect their children or attending at children’s playgroups.
We are told that over the last 10 years the number of stay at home dads has increased by only 6,000 and in the same period the number of stay at home mums has decreased by some 44,000. So who is then looking after the children? Well, it seems that it is the grandparents and other carers who are helping out.
Gideon also goes on to give other interesting statistics such as to tell us that it seems that where dads are stay at home and the mother working she does more of the domestic chores than a working dad would do in a similar situation.
Gideon, not surprisingly, doubts whether the coalition government’s reforms in this area, from 2015 introducing men’s rights to share up to 12 months paid parental leave , will actually be taken up by dads especially as the increase in the right to share parental leave since 2011 has had very little take up by dads.
Following completion of its public consultation on its response to the Family Justice Review, the Government has published its plans on shared parenting, which are contained in the Children and Families Bill 2013. This includes a clause, amending the Children Act 1989, so that a court will have to presume, unless the contrary is shown, that involvement of both parents in the life of the child will be in the interests of the child, provided that that involvement does not put the child at risk of suffering harm.
The Government have made clear that this change has been worded specifically to avoid any implication that the presumption of shared parenting means equal time. It has made clear that the welfare of the child will still be the most important consideration.
The Government wants couples to be encouraged to resolve their disputes without the need for going to court. To that end family mediation is supported and more funds are being put into promoting and supporting mediation, although at the same time the Government have abolished legal aid for most family disputes concerning money and children but legal aid is still available for family mediation.
However, where the parents are not able to resolve their differences and the court is involved, the Government believe that this presumption of shared parenting will help to improve the court system by giving more confidence to both parents that the court will consider that the involvement of both parents in the lives of their children after separation is of benefit to the children.
The Ministry of Justice has published divorce hot spots in order to urge couples to use divorce mediation to ease the dispute rather than fighting it out in court.
Legal Aid will stop for most family matters after March 2013 but will remain for divorce mediation. The Government will be putting more money into supporting mediation and have said they want to make it compulsory for separating couples to attend a Mediation Information and Assessment Meeting (MIAMs) before starting court actions concerning children and finances.
Family Justice minister Lord McNally said: “All too often I hear stories of families going through expensive and traumatic court hearings, but we know that when working out how to split assets and arrange time with the children, mediation is a far simpler and cheaper approach for everyone and leads to better outcomes.”
Outside of Greater London, in the period Oct 2011 – Sept 2012, Birmingham came first with 2799 divorce petitions whilst Weston-super-Mare came second with 2447 divorce petitions whilst. Then came:
However, Weston-super-Mare soon challenged their top spot when it emerged that an online divorce company were starting its divorce petitions in Weston as the Ministry had told them it had more capacity than other busier courts.
Mediation is voluntary. It is not unusual for one party to be keen to mediate but the other refuses to attend. If that happens then family mediation cannot go ahead.
Some people think that mediation can be forced on you by a court. This is wrong. A court does not have that power. However, a court should consider with the parties whether family mediation would be suitable and can adjourn court proceedings for the parties to attend a Mediation Information and Assessment Meeting.
For these reasons many folk feel more comfortable to have at least attended a mediation information meeting before going to court. In a lot of cases they like what they hear and carry on to resolve their differences by the use of family mediation.
The Government has launched a web app, “Sorting out Separation”, to help separating parents make arrangements for their children and other matters arising on separation. Amongst its many sections the app has a section on Family Mediation.
At the same time a YouGov poll was published concerning parents access to help when separating. This is important as we are told that about one third of children in Britain, that is, over 4 million children, live in separated families.
The poll found:
52% of separating parents find it difficult to get help and support. They do not know where to look.
39 % of separating parents did not get professional support. Of them 25% said that was due to being embarrassed or that they could not find what they needed.
27% who received professional help found they had conflicting advice.
Many people believe that cohabiting couples who break up have legal rights against each other: the so called “common law husband and wife”. In fact this is a myth as they have no rights based on the fact of their cohabitation.
In 2007 the Law Commission (an independent body which reviews the law of England and Wales and recommends reforms) recommended that the law be changed to give cohabitants some rights when the relationship ended albeit not the same rights as a divorcing couple have against each other. However, the government has not acted on that recommendation. The position is different in Scotland as there cohabitants have rights.
In Scotland the court looks to see if one party has obtained economic advantage from the contributions made by the other party and whether the first party has suffered economic disadvantage in the interests of the other party or any child. The court takes into account the extent to which any economic advantage derived by one cohabitant is offset by the economic disadvantage suffered by the other. Such imprecise wording allows flexibility for the courts using these powers but leads to uncertainty in predicting outcomes. The Law Commission favoured a more restrictive law for England and Wales.
The uncertainty over property when couples split up can be very expensive to resolve. Family mediation can be very helpful in these situations in enabling couples to resolve their differences far more quickly and cheaply than going through the courts.
The government believe that mediation is often a better way of resolving disputes about arrangements for children or finances following relationship breakdown. This does not just apply to the couple concerned but could include other family members such as grandparents.
In order to encourage anyone wanting to apply to the court for an order relating to children or a financial remedy, to first obtain information about family mediation and other alternatives to court, a form called Family Mediation Information and Assessment (MIAM) form-FM1 needs to be completed and given to the court . This form confirms that the person has attended a meeting with an accredited mediator or to provide reasons for not having done so.
On 1 December 2012 the Ministry of Justice published a new version of the Family Mediation Information and Assessment (MIAM) form-FM1.
On a divorce a court can look at all the assets owned by the parties to the marriage.
Amongst other types of order, a court can order one party to transfer an asset he or she owns to the other party. Sometimes what are owned are shares in a company and the company itself owns assets, for example, properties.
In the past, courts have been fairly robust at looking at the reality of the situation when making orders. For example, if the husband is the sole shareholder ( that is the sole owner of a company) and is used to treating the assets of the company as his own, family courts have felt able to make orders directly against the company property in favour of the other party.
In a recent case Moylan J decided that assets held by companies, where the husband was the sole owner, were effectively his property and ordered the husband to transfer to the wife certain properties held by the companies.
However, the decision was appealed and the appeal court decided that this approach by the family courts was wrong as it disregarded the very long established legal principle that a company was a separate legal personality from its shareholders so that the court did not have this power in a divorce so the earlier court decision was wrong.
The case is now being appealed to the Supreme Court so watch this space.