ProtectionMar 29 2022

No-fault divorce law change highlights pre-nup importance

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No-fault divorce law change highlights pre-nup importance
Credit: Unsplash

Currently, in order to obtain a divorce a spouse must persuade a court that their marriage has broken down irretrievably, and provide one or more of the following 5 reasons (also known as ‘facts’): 

  • adultery;
  • unreasonable behaviour;
  • separation by consent for two years;
  • separation for five years; or
  • desertion.

To avoid having to wait two or five years most divorce petitions are based upon one of the fault-based provisions, and of these unreasonable behaviour is the most commonly given reason (the other party has behaved in such a manner that you cannot reasonably be expected to live with them). 

When drafting a behaviour petition a solicitor must strike a fine line between evidencing sufficient behaviour to persuade a judge that the marriage has in fact broken down and avoiding particulars of behaviour that are likely to send the other party into orbit.

It does not require much imagination to envisage the unfiltered list of complaints a family lawyer can be presented with when asking a party to provide examples of their spouse's unreasonable behaviour.

It can also be a lengthy and arduous task to distil these into something more palatable. When possible, divorce petitions are drafted in an anodyne manner and tend to include mundane examples such as one party working too hard or not spending enough time with the family – in other words allegations that should not cause the other party to take offence. 

Inevitably, some petitions have the effect of poisoning relations between the parties, but equally some people need the cathartic process of committing to paper what they have been subjected to in the marriage when bringing it to an end. The emanating sideshow can, however, have the unfortunate knock-on effect of making it harder to settle the truly important issues, namely arrangements for the children and the division of finances.

Owens v Owens

There have, perhaps surprisingly in this day and age, been instances where the courts have decided that the content of a divorce petition is insufficient to satisfy the criteria and have refused to grant a divorce. This most famously occurred in the case of Owens v Owens in which my colleague, Simon Beccle, acted for Mrs Owens.

It does not require much imagination to envisage the unfiltered list of complaints a family lawyer can be presented with when asking a party to provide examples of their spouse's unreasonable behaviour. 

She was denied a divorce despite providing 27 examples of what she considered to be unreasonable behaviour on the part of Mr Owens and living apart from her husband. 

Many had enormous sympathy for Mrs Owens who, despite two appeals (in 2017 and 2018), was essentially forced to remain in a loveless marriage against her wishes. The decision was a clear example of the court being out of kilter with society and the judgment lit the fuse under the long-standing campaign for a change in the law.

New law

From the April 6 2022 the Divorce, Dissolution and Separation Act 2020 will come into force and it will no longer be necessary to blame the other party for the breakdown of the marriage. 

The parties can file jointly for divorce for the first time, reflecting the reality that in many divorces both parties accept the marriage has reached an end. Alternatively, either party can file on their own simply stating that the marriage has irretrievably broken down and that will be sufficient to obtain a divorce. 

It will no longer be possible to mount a defence to a divorce petition. Divorce will be inevitable and the new process should leave the parties free to focus upon the key issues and bring the blame-game culture to an end. 

Prepared for the worst

But what else can couples do to ensure that their separation is as straightforward as possible?

Consider a nuptial agreement setting out what is to happen in the event that the marriage breaks down. Pre and post-nuptial agreements are technically not legally binding in England, but following the landmark case of Radmacher v Granatino in 2010 they will in the majority of cases, if properly executed with the benefit of legal advice, be sufficient to persuade a judge that they should be upheld. 

The logic is that if the parties have entered into an agreement of their own free will and they understand the implications, then they should be held to their agreement. 

While many regard a pre-nuptial agreement as wildly unromantic and commercial, they can reduce the time, legal costs and tension when unravelling a marriage. They are also practical; a successful entrepreneur would never put themselves in the position where they could lose 50 per cent of their business without taking any legal advice.  

Divorce will be inevitable and the new process should leave the parties free to focus upon the key issues and bring the blame-game culture to an end. 

It is hoped that the new law will prevent the Owens situation arising again and also reduce the tension surrounding divorce. For those parties who have also put in place a pre or post-nuptial agreement, the actual divorce and separation should be dealt with far more smoothly and should become more of a paper exercise.

That said, experience has taught practitioners that if people want to create conflict and have their day in court, they will simply find other ways of doing so. As one door closes, another window will probably open.  

Who should have a pre-nup?

A pre-nuptial agreement (or post-nuptial agreement signed after the marriage) seeks to set out what each of the parties should walk away with should the marriage fail. 

People now tend to marry later in life and so have more assets accumulated prior to marriage that they may wish to exclude from division on divorce. 

People are also more likely to marry more than once and therefore wish to protect the assets they go into a new marriage with. 

Shortly put, anybody bringing wealth into a marriage, or anybody likely to inherit significant assets should consider whether a nuptial agreement is appropriate.

How does this tie in with the new divorce law?

We can foresee a future where relationship breakdown can be dealt with in a more economical and less controversial way. 

The new divorce law should also result in less acrimony between parties at the point of separation as they will no longer have to blame the other party in order to satisfy a judge that they should be entitled to a divorce. 

If the parties have also invested time and effort with legal advisers pre marriage to negotiate a fair settlement (that is, at a point when the relationship is harmonious), in the event of the relationship's demise then it is more likely that they will be able to separate their finances in accordance with the agreement, leading to a smoother separation.

However, to end on a cautionary note, fairness, like beauty, is in the eye of the beholder. Nobody can crystal ball gaze and circumstances change.

What seemed a fair agreement 20 years ago in the flush of youth may seem patently unfair in the mature cold light of day.

A party who is persuaded in happier times to give up their career for the good of the marriage or to have children may be left with a very bitter taste on the implementation of a pre-nuptial agreement.

Their earning capacity may never recover and their capital position may have been heavily curtailed by a nuptial agreement.

Family lawyers used to tell clients to put their pre-nuptial in a drawer and forget about it. In the modern world, one eye needs to be kept firmly on that drawer and consideration needs to be given to updating any nuptial agreement before making any potentially life-changing decisions during the marriage.

Rebecca Cockcroft is partner and co-head of the family department at Payne Hicks Beach