No Fault Divorce: the Latest

It's back. The Divorce, Dissolution and Separation Bill. It was murdered by the dissolution of Parliament for the general election but has just been formally reintroduced.

Big deal? It is if you after matrimonial freedom. in England and Wales. You will find my summary of what it is all about by clicking here http://www.breakinglaw.co.uk/search/label/matrimonial%20law

I am expecting the legislation to fly through Parliament. It will not come into force immediately as it will first require detailed rules. I'll update you on the likely implementation date as soon  as I can. * In the meantime, you can go about securing your freedom under the present law which, in the vast majority of cases, should not present an enormous problem.

* I'll eat my Woking Pizza if it is before January 2021. More as and when further information reaches me.

New Divorce Laws Explained: Pounce or Wait?

The government has just announced its divorce law reforms. If you are hoping to take advantage of them, you will need to be patient. Parliamentary time has to be found for the bill when it is ready. The bill is likely to sail through Parliament (yes, I know they said that about Brexit) but could not be implemented until procedural rules had been drawn up which will be complicated. It could be two years (or more or less!) before the changes are in force. So, don't book the priest (incidentally, the Fleabag cleric is not available) for your remarriage quite yet. Of course, you could always take advantage of the present laws if you can establish one of the five factors which would lead to your freedom - your spouse's adultery, unreasonable behaviour, or desertion which has lasted for at least two years, or a period of separation which has lasted for at least two years if your spouse agrees to  divorce or at least five years if your spouse does not agree or you cannot find them. Divorce on the basis of five years apart will hardly ever be denied whatever the stance of the other party.

Over to the reforms, then. No divorce or civil partnership dissolution until at least one year has elapsed since the ceremony. Then you will be able to go for freedom by lodging a statement with the court confirming that the relationship has irretrievably broken down. You won't have to rely on any of the existing grounds. Just irretrievable breakdown. The statement can come in from you alone or jointly from you and your spouse. Once at least 20 weeks have elapsed from lodging the statement, you will be able to apply for the first decree (it's called the decree nisi in divorce now but its name will change) and then, after at least a further six weeks, you will be able to apply for the second and final decree (it's called the decree absolute now but, again, its name will change). Don't imagine that it will all be over and done with at the end of the 26 weeks. These will be minimum periods and documentation will have to be processed by the court. Nothing will be automatic. It will be down to you to ask for each of those two decrees.

The court will have power to expedite the second decree. It may also be given power to expedite the first decree. It could be given the power to hold up the second decree where financial matters have not yet been resolved.

Cases will almost invariably be dealt with 'on paper' without any personal attendance at court except in respect of any financial applications or child welfare disputes. The present scheme for online divorce etc which is not yet in full flow will have to be adapted to cater for the new procedure. Don't hold your breath!

The nullity law is untouched. It will continue to be possible to ask for a separation decree instead of a divorce  - even within the first year -but, in that event, it would not be necessary to show that the relationship had irretrievably broken down. The court can make lots of financial orders where just separation has been granted.

You will find a great deal of material on the present divorce and other matrimonial law and on how to bring and counter financial applications in my book Breaking Law. Have a read but I'm afraid you will have to buy a copy. Well, not too afraid!

Happy times.

The No-Sex Agreement

There are couples who wish to marry or enter into a civil partnership without the sex. More than you may think. This can be for a variety of reasons, the most likely to be age, incapacity, repugnance or simple disinterest in sexual activity. Companionship may be quite sufficient.

The courts have recognised that some degree of sex is the norm in a marriage between parties of the opposite sex and there is no reason to suppose they would take a different view with a same sex marriage or civil partnership.

In a 1964 case on the ground of cruelty - the precursor, and less onerous ground, of the modern unreasonable behaviour - the parties married when the wife was 18 and the husband 33. They had a child soon afterwards but sexual intercourse ceased about one year later. After 15 years of the husband refusing intercourse, the wife left home. She alleged   her health had suffered. She was refused a divorce and her appeal was thrown out. “I’m not satisfied,” said the appeal judge, “that the husband was guilty of inexcusable conduct. In view of his natural disinclination for sexual intercourse, to find him guilty of cruelty is rather like beating a dog because it will not eat its food.”

And in a 1977 case, the wife was refused a divorce because of her husband’s alleged unreasonable behaviour which was based on an unsatisfactory sex life. She said he had been cold and indifferent to intercourse. This had taken place about once a month and, when it did, the husband quickly withdrew. There were upsets and this wife also left home. Even though her word was accepted, the judge hearing the case decided that unreasonable behaviour had not been proved and an appeal court came to the same conclusion.

In 1980 the Court of Appeal ruled that sexual intercourse once a week over a three month period did not amount to unreasonable behaviour when the 30 year old husband used this as the foundation for his divorce petition against his 31 year old wife. The couple had two children during a ten year marriage. The couple had has sexual difficulties over the years and the husband had undergone a vasectomy. The wife’s rationing had followed that procedure. Lord Justice Ormrod said: “I find it wholly unreasonable to say that she (the wife) was behaving unreasonably.”

If these first two cases were to be rerun now, I would be surprised if the results would be the same. So it is that the party for whom sex is off the matrimonial agenda is vulnerable to their spouse or partner using this as justification for seeking a marriage annulment, a divorce or a partnership dissolution and to the financial consequences which could follow. It all depends on the circumstances of each individual case but vulnerability does exist.

My no-sex agreement which you will find in Breaking Law can be adapted to a civil partnership and to cater for some sex between opposite sex parties which falls short of intercourse. It could scupper an attempt at an annulment of an opposite sex marriage or divorce or civil partnership dissolution on the basis of no-sex  However, in some situations it might not work. Take this one. A healthy and young opposite sex couple enter into an agreement and marry. Later, the wife changes her mind about sex and wants a child through intercourse. The husband though perfectly capable of the act refuses her. The court might well say that the husband’s conduct amounted to unreasonable behaviour despite the agreement. There is also a risk that the court would say that the agreement had to be ignored on the ground that it was contrary to public policy and unreasonable. Be that as it may, in the right circumstances, worth  a try and, at the least, the agreement could well deter both parties from bringing the bedroom into their matrimonial dispute. That cannot be a bad thing: bedrooms are better left as places of privacy.