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Helen Bishop, Consultant Solicitor

January 2019 updates: Family Law and Brexit

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As we enter a New Year it is a time for reflection and to look forward to the coming year, and Family Law is no exception. 2018 saw some high-profile family cases in the English Courts some of which have had a direct impact upon the way divorce may evolve, and of course we are entering a year when we will be leaving the European Union, which will ultimately have repercussions for Family Law.

Brexit

Brexit may well have been a topic of discussion over the dinner table in many homes this Christmas, and we enter 2019 in a tide of great uncertainty for the future: economically, socially and legally.

Many of us may not be aware that every divorce in England and Wales is currently based upon European jurisdictional requirements under “Brussels IIa”.  Unlike other areas of law however, each member state retains its own “family law”, but what the EU does provide is:

  • A system to decide which country is to take precedence if cases are issued in two member states.
  • A mechanism to allow court orders for maintenance, injunctions and children act orders to be enforced in all member states and not just the country of origin.
  • A process of sharing relevant information to ensure the safeguarding of children.

In a world, where so many families are living an international family life we require certainty that Court Orders obtained in the UK will remain enforceable within the jurisdictions of our European neighbours. 

The big question on everyone’s lips is what will happen after the 29th March 2019?  The answer remains that we do not know, as we are currently entering the New Year without a “deal”.  The government would like to see a similar arrangement in place, however without a “deal” this is not guaranteed.

The next few months and years will therefore be crucial in making sure that we are provided with the required certainty and protections required.

We may also see some of our rights currently protected by EU Human Rights legislation effected, and again, without a deal, we are not sure how this will ‘pan out’.

The “No Fault Divorce”

Many of you will have read in the press the debate after the case of Owen and Owens that has ignited increased momentum for a change in the way the divorce process works to make way for the “No Fault Divorce”. At present anyone seeking to obtain a divorce in England and Wales must under the Matrimonial Causes Act 1973, prove that their partner is “at fault” by one of the following facts;

  • Adultery
  • Unreasonable Behaviour
  • Desertion

If none of the above are applicable then the parties will have to wait two years, if both parties consent to the divorce, or in the absence of consent by the responding party, then the petitioner of the divorce will need to wait 5 years until a divorce can be obtained. This is the situation that Tina Owens has been left in, after a long legal battle to obtain a divorce earlier on the grounds of her husband’s unreasonable behaviour, which he has successfully defended.

The result is that Mrs Owens is locked into a marriage that has clearly irretrievably broken down, yet she will need to wait until 2020 (having separated in 2015) before she can successfully obtain a divorce. This ultimately means that Mrs Owens, a 68-year-old lady is left in an unsatisfactory position whereby she cannot move on with her life until 2020.   

In Scotland if the parties do not consent a divorce can be obtained after 2 years and countries such as Ireland, Australia, Spain and the US already have no fault divorces.

A no fault divorce bill was introduced in 2015-16 but did not proceed through the Houses of Parliament.  However with the outcome of the case of Owens and Owens the pressure for reform has never been greater, and a private members bill titled “Divorce etc” had its first reading in the House of Lords on the 18th July 2018, although the second reading has yet to be scheduled.   Whilst no concrete conclusion is in place as yet, there is an appetite within the legal profession, by politicians and the general population  for change,  and hopefully 2019 will see positive steps towards such well needed reform.

So, as we move forward into 2019, family law will continue to evolve to adapt to the political changes afoot and the growing momentum in our society for the need for change in the way our divorce process works to minimise the animosity that the current use of blame can create and to prevent individuals being trapped in broken marriages.

If you require any advice about divorce, separation or children act matters please contact Boardman Hawkins and Osborne LLP

Helen Bishop, Consultant Solicitor

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