Regulation  

Fairer way to fund a divorce

Fairer way to fund a divorce

A new law to end the ‘blame game’ in divorce proceedings has been announced in the UK. 

Last week, the government said legislation to allow “no-fault” divorce would be introduced “as soon as parliamentary time allows”.

This comes in the wake of the widely publicised Supreme Court decision in Owens v Owens where a wife was condemned to remain unhappily married to her husband of 40 years until 2020 on the basis of the “flimsy” and “exaggerated” examples of unreasonable behaviour in her divorce petition.

Under the existing regime, unless both parties agree to a divorce and are willing to wait two years for it, one spouse has to draw up allegations of the other’s ‘unreasonable behaviour’ or prove that adultery has taken place. 

When it comes to drafting a divorce petition based on unreasonable behaviour, there is an unspoken agreement between sensible practitioners that they will try to tone down their client’s allegations so that, while satisfying a judge that the behaviour in question is sufficient to justify granting a divorce, they do not cause undue or unnecessary antagonism. 

Many people, however, are determined to stick the knife in, overflowing onto continuation sheets as they itemise their former partner’s shortcomings and misdemeanours meticulously. 

While this might feel cathartic at the time, it hardly needs stating that this approach can result in an unnecessarily messy divorce as antagonism skyrockets. And, of course, it can have a catastrophic effect on the parties’ ability to resolve their finances amicably, let alone co-parent constructively. 

Misconceptions

Unfortunately, there are a number of misconceptions when it comes to divorce law.

Many mistakenly believe that the party who is to blame for the demise of the marriage will be penalised for his or her behaviour and, the more blame that can be apportioned to him or her, the worse off he or she will be when it comes to the final reckoning on finances. 

This is true only in the rarest and most extreme circumstances and, on the whole, the conduct of the parties during the marriage will have no bearing whatsoever on where they end up financially.

Misunderstandings like these are exactly why it is so important to get sound legal advice from a family practitioner at an early stage. That way, individuals can get a proper understanding of their likely outcome and start to plan accordingly. 

Battle of unequals

But what if they have no access to funds to pay for that advice? Perhaps all the family equity is tied up in property, businesses or trusts, or perhaps the financially stronger spouse has always controlled the family finances and will not release funds to their spouse so that they can access legal advice.