Four ideas that could change the face of divorce law
The modern family unit is changing – and the law is struggling to keep up. One area where this has become increasingly apparent is divorce law, most of which was written not in the previous decade, but in the previous century.
Of course, there are good reasons for this – not least the need to maintain a consistent and fair divorce system – but it’s clear there’s more we could do to make life easier for divorced or separating couples.
So how could divorce law be updated, improved or adapted for the modern era? Here are four ideas which seem to be gathering steam among lawyers and lawmakers alike.
No fault divorce
Unless a couple have been separated for at least two years, currently the only legal way to get a divorce is for one spouse to blame the other for the breakdown of the marriage. This means that, even in divorces where all other aspects are agreed amicably between the parties (perhaps through collaborative law or mediation), someone must be designated as the person ‘at fault’.
This can sour relations unnecessarily in the divorce process as it forces couples to agree who should take the blame. ‘No fault’ divorce is a solution to this problem – a change in the law that would allow divorcing couples to split by mutual consent, without the need to live separately first or allocate blame.
Binding prenuptial agreements
Unlike in the USA, prenuptial agreements – prenups – are not legally binding in the UK, although they are used by a divorce court as evidence of the couple’s intentions before marriage.
However, a draft law which would make prenups legally binding is being examined in Parliament. The proposed new divorce law has been written by the academic and lawyer Baroness Ruth Deech, who argues it would simplify divorce proceedings if prenups were legally enforceable.
Whilst the law is unlikely to be passed this time around, this proposal could come into force in the future. If so, there will be real demand from couples for matrimonial finance advice before a marriage takes place – binding prenups leave less room for manoeuvre should a couple later divorce.
Fixed divorce settlements
Another idea in the proposed law is to fix maintenance payments, so separating spouses could only claim maintenance for a set period of time. This would reduce our judges’ discretion and potentially simplify financial settlements. The proposal is to limit the period over which maintenance payments would be made to three years.
In some ways fixed settlements could be a good thing – reducing the chance of divorced spouses asking for more money down the line, as happened to Graham Mills 15 years after his initial divorce settlement.
That said, removing judges’ ability to use their discretion could have unintended side effects. Marital finance disagreements are nuanced disputes that often interlink with other issues, such as child contact. Fixing divorce settlements without careful forethought could put the divorce system out of kilter.
Online divorce courts may seem like a thing of the future – but the first trials are already underway.
Many websites already advertise ‘online divorce’ services, but in reality the divorce application is still filed and approved in a bricks-and-mortar court.
A new online court would allow couples to file for divorce over the Internet, potentially saving money and time. However, both former spouses would still need to seek legal advice, as without it they could expose themselves to future financial risk.