Kerry Smith

A Case for No-Fault Divorce
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A Case for No-Fault Divorce

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

When it comes to the law and personal relationships, the UK is a curious mixture of the progressive and the archaic.

On the one hand, the law recognises same-sex unions, on the other the process of ending a marriage through divorce seems to be stuck in the past, specifically the 1970s and the Matrimonial Causes Act 1973.

Irretrievable Breakdown of Marriage in the 21st Century

In England and Wales a divorce can only be granted if it is shown that a marriage has broken down irretrievably and there are only 5 acceptable grounds for making this claim.

Adultery – In legal terms adultery is defined as having a sexual relationship with a member of the opposite sex, same-sex relationships are not recognized in this context.

Also adultery ceases to be recognized as grounds for divorce if the deceived party continues to live with their spouse for 6 months after discovering the affair.

Desertion/Living apart

If a husband and wife live apart for two years and both agree to a divorce

If one party leaves the other for two years and the other party requests a divorce

If a husband and wife live apart for five years and one or the other wants a divorce

Unreasonable Behaviour

One party behaves in such a way that the other cannot reasonably be expected to continue living with them.

De facto No-faults Divorce versus Legally-recognized No-faults Divorce

Looking at the list of reasons given above, it can be seen that currently the only way to be granted a divorce without some element of blame being attached to at least one of the parties is to wait at least two years, which can seem a very long time for couples looking to separate amicably and move on with their lives.

Because of this, Richard Bacon MP attempted to introduce the No-Fault Divorce Bill 2016, but this failed to get past its first commons reading.

Interestingly this appeared to be through lack of time as the second reading was postponed and postponed again, rather than through any strong, entrenched resistance to the idea itself.

There is still strong pressure from the legal community to recognize no-faults divorce, as is already the case in some other countries. In particular Resolution, an association of 6,500 family lawyers and other related professionals are continuing to campaign for a change in the law.

They argue that permitting no-faults divorce would not only free up court time, but also have a far lower impact on children.

Moving from the Blame Game to Respectful Co-parenting

The fact that there is still a requirement to demonstrate blame in divorce cases is particularly odd given that over recent years the government has heavily promoted the use of mediation during divorce.

The whole point of mediation is for couple to work constructively together to find a mutually-agreeable way forward which will always have the interests of their children (if any) at the forefront.

Even when divorce is the outcome, the idea is to move forward positively, particularly if there are children involved.

Notwithstanding this if the couple wish to divorce immediately (rather than wait two years), when the case goes to court one or the other has to shoulder the blame for the end of the marriage.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

 

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Isle of Man Heterosexual Civil Partnerships not Recognised by UK Law

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Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

The Isle of Man has become the only place in the British Isles to allow heterosexual couples to enter into civil partnerships.

However, the situation is not entirely a straightforward one, with the UK saying that it will refuse to recognise civil partnerships registered between opposite-sex partners on the Isle of Man.

Since marriage was legalised for same-sex couples, the UK has been left with a situation where same-sex partners can enter into either a marriage or a civil partnership while opposite-sex couples can only enter into a marriage.

To some, this situation has made sense, as civil partnerships were originally conceived as a way to give homosexual couples the rights of marriage at a time when they still could not enter into a “full” marriage.

However, some heterosexual couples have expressed a wish to enter into a legally-recognised partnership without the cultural baggage of a marriage, and others have perceived an imbalance in the current system.

As such, there have been some calls to allow civil partnerships for opposite-sex partners. So far, however, the Isle of Man (which is not part of the UK) is the only part of the British Isles to recognise such partnerships.

The Isle of Man first started allowing opposite-sex civil partnerships this summer.

On 22nd July, the island implemented the Marriage and Civil Partnership Act 2016, which allowed same-sex couples to marry on the island as they can in the UK and also enabled heterosexual couples to enter into civil partnerships.

It was expected that this would place the rest of the country under pressure to follow suit, such as LGBT rights advocate Peter Tatchell who said that people would “wonder if the Isle of Man can have equal civil partnerships for opposite sex couples why not England, Wales, Scotland and Northern Island.”

Tatchell also said that, if heterosexual couples travelled to the Isle of Man in order to enter into such a partnership, this would place the UK in a position of having to decide whether those partnerships would be legally recognised.

The Isle of Man officials said at the time that they expected opposite-sex civil partnerships registered on the island to be recognised throughout the country in the same way as traditional marriages.

The UK, however, has since reached a decision that it does not intend to recognise these unions.

In October, the question was raised in earnest when a London couple, consisting of opposite-sex partners, did indeed travel to the Isle of Man specifically to enter into a civil partnership.

In a statement to parliament intended to resolve the matter, Caroline Dinenage, Equalities Minister, reiterated that “The 2004 Civil Partnership Act created civil partnerships for same sex couples only.”

She went on to say: “As opposite sex couples cannot lawfully register a civil partnership here, the Act provides that couples registering a relationship overseas are not to be treated as having formed a civil partnership if, at the time the relationship was formed, they were not of the same sex.”

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

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Same Sex Marriage vs Civil Partnership

Same Sex Marriage vs Civil Partnership Registrations – What has Changed?

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Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

Marriage became legal for same-sex couples in March 2014, but civil partnerships, generally seen as a substitute for marriage, remained an option as well.

Recent figures from the Office for National Statistics have shown exactly what the effect of same-sex marriage has been on the number of couples opting for civil partnerships.

Registrations for civil partnerships were cut almost in half following the legalisation of same-sex marriage. There were 1,683 such registrations in 2014, the year same sex marriages were introduced, but only 861 in 2015, a drop of 49%.

Compared to 2013, before same sex marriages had become legal in the UK, the difference is even more pronounced. Since then, the number of registrations for civil partnerships is down by 85%.

Interestingly, there have also been changes to the kinds of people who are registering for civil partnerships over the same time period.

For example, there has been a shift towards older people choosing to register for civil partnerships since marriage became an option for same-sex couples.

In 2013 the average age of a man entering a civil partnership was 40.8, and for a woman it was 37.9. In 2015, these figures had risen to 48.5 for men and 49.1 for women. While in 2013 just 19% of those entering civil partnerships were aged 50 or above, in 2015 couples over 50 accounted for 48% of new civil partnerships.

Men seem to have a greater tendency than women to continue to choose civil partnerships over marriage.

2015 saw the highest proportion of male civil partnerships since the year of their introduction in 2005.

Initially, men were more prevalent in the formation of civil partnerships but the split between men and women later evened out to fluctuate each side of the 50/50 mark. In 2015, however, men became decidedly the larger group of new civil partners and accounted for two thirds of all civil partnerships formed.

Women, on the other hand, more readily took up the opportunity to marry same-sex partners. Between the introduction of same-sex marriage in March 2014 and June of the following year, female couples accounted for the majority of marriages between partners of the same sex.

As civil partnerships are often seen as a substitute for marriage aimed at same sex couples, many have questioned whether this kind of union has a future now that such couples are able to simply get married.

Couples who were already in civil partnerships have the right to convert their existing legal union into a marriage, and many have chosen to do so. Furthermore, the data shows that couples are largely and increasingly choosing marriage over a civil partnership now they have the option, and there is little expectation that this trend will do anything but continue.

There are, however, opposite-sex couples campaigning for civil partnerships to be opened up to them, as currently these kinds of unions are only open to same-sex couples.

Some opposite-sex partner’s feel for various reasons, such as objections to the cultural and ideological baggage associated with marriage, that they would like access to an alternative that is more along the lines of civil partnerships.

If civil partnerships do continue to exist in years to come, this may be the purpose that they serve.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

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1 in 5 UK Couples are Likely to Separate

How Many Marriages End in Divorce or Separation?

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Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

Counselling charity Relate has carried out nationwide research that has found that 20% of UK couples are likely to separate.

As part of their ‘Understanding Society‘ survey, both married and cohabiting couples were questioned and the results show that almost 3 million people are unhappy in their current relationships.

Couples were asked, as part of the survey, how often they argued and whether divorce was a possibility. They were also asked if they had any regrets about entering into a relationship with their partner and how unhappy they actually were.

The data showed that in 2011 and 2012, the number of relationships that were branded as distressed and the figure is still yet to return to what they once were before the recession took hold.

There is a clear pattern between the recession and the stress placed on a relationship.

This could be down to the financial strain and problems such as unemployment, debt and low income. While the recession may have eased and we seem to be heading into the clear, the same cannot be said for relationship stress levels.

The study also found that nearly 50% of couples admitted that they argued occasionally with almost 7% of these stating that their arguments became severe.

Couples with children under the age of 16 were likely to be in a relationship that left them unhappy or distressed and having their first child is seen as an event that completely changes the quality of the relationship. There were some regrets to getting married for 10% of those who took part in the survey and 9% had thought about divorce.

The breakdown of a relationship is not the real problem but it is more to do with the conflict that comes with it. Therefore, it is not particularly damaging to children when a relationship ends but it is the conflict that can cause more harm.

For those children who are brought up in a relationship that is fraught with conflict and distress, they are likely to experience a number of problems such as mental and physical issues.

It is believed that they are also likely to struggle in school and could even find themselves in trouble with the law. It is common for many couples to put up with their problems for many years before they even consider looking for help.

When that time does arrive, it is often the case that the damage has been done and that the relationship cannot be saved. The results and findings from the study are a huge concern and it shows that families cannot continue to suffer in silence in the way that many do.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

 

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technology is changing divorce
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How Digital Technology is Changing Divorce

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Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

Divorce has been changing a lot in recent years, but these changes are not just a matter of successive legal reforms and year-to-year changes in rates.

One source of change that is often underappreciated is the impact that the rise of the digital sphere, and in particular the world of social media, has had on the process of ending a marriage.

Digital technologies have changed the world of divorce primarily through introducing a new avenue of investigation and enquiry. Digital records are often much easier to investigate, and much harder to conceal or destroy if you say something you later regret.

This means that communications made directly with your former partner and with other parties can usually be analysed in great detail, as can any angry Facebook statuses or tweets you may have made relating to the divorce process or your former partner. These can have a significant impact on the divorce process, and are entirely capable of impacting the final settlement.

Even a Google search history can have an impact.

As such, digital evidence is playing an increasingly big role in today’s divorce cases, with written communications – whether made privately or in the more public sphere of social media sharing – probably playing the biggest role. It is a lot harder to deny communications that are on written record than things you have said verbally, and it is a lot easier to send an instant message or post a social media update in the heat of the moment and with little thought than it was for our ancestors to send an angry letter.

Modern technologies are also playing a role in bringing about divorces – or at least hastening the end of already-troubled marriages. Once again, social media is probably the most prominent aspect of the modern world in operation here.

The key factor is much the same; digital communications leave a permanent record and in some circumstances can be much easier for somebody to access than traditional communications methods. Such accessing of private communications may be intentional, for example if a spouse already has some suspicions and accesses their partner’s texts or Facebook messages in an attempt to confirm or refute them.

However, it is also quite common for such communications to be stumbled upon accidentally, for example if a spouse is looking for something else on a partner’s phone, or if one person has left their social media accounts active on a shared computer.

As you might imagine, adultery cases are the biggest group to which this is relevant. Messages that prove or provide supporting evidence for adultery suspicions can be the final triggering factor for divorce, as can incriminating or suspicious photographs that have been shared on social networks.

In other cases, what is discovered may be “virtual adultery,” online flirting with or without “actual” infidelity taking place, and this could still hasten or trigger the end of the relationship. However, similar principles can apply in cases where there is no infidelity at all. If a marriage is already going through difficulties, it is entirely possible for one partner discovering unflattering things their partner has said about them to friends, for example, to prove to be the final straw.

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

 

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High Net Worth Individuals Being Forced into Divorce Settlements Due to Loss of Privacy

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Kerry Smith
Kerry Smith
Head of Family at
K J Smith Solicitors

Couples who have a high net worth and a celebrity status are now having to choose negotiated divorce settlements in an attempt to avoid a court appearance as they could lose their privacy as many high profile divorce cases are now reported in the press.

This leads to sensitive information being leaked such as personal details, financial arrangements as well as the way in which their assets are divided.

If sensitive financial information is leaked to the press there is a real concern as it can lead to a security risk or even inform rival businesses of an individual’s financial position which can work against them.

Those individuals who have a high net worth can apply for a restriction to be put in place on any form of reporting via an application for privacy but this can often work to their disadvantage as all couples who apply for these applications have a responsibility to inform the press so that they have the opportunity to contest.

Where cases occur that involve an individual who has a high net worth instead of a celebrity, it can lead to unnecessary attention from the media especially if they are not obvious targets as it makes them aware of a divorce case that could be news worthy that they otherwise wouldn’t have been aware of.

Problems can also be made worse because individuals can also use the media to their advantage as it can lead to their ex-partner having to take an unfair settlement through making threats to proceed with a court hearing which can then lead to further exposure.

In April 2009, Journalists were allowed to sit in on most family law cases following many years of heated arguments.

Some family court judges also allowed a completely open court, however in some cases, where court cases involved the identity of a child or an adult who was vulnerable, the court would remain closed.

Many judges encourage transparency when it comes to the family courts but there are some who are against it which can lead to an increased level of inconsistency and conflicts.

There was one instance where Mr Justice Mostyn heavily criticised another judge known as Mr Justice Holman. He was criticised for giving his views on the restrictions put in place for the press because he believed that, that should only be granted access for a limited number of cases.

The issue is that there are no strict guidelines in place regarding what is allowed to be published and what isn’t which means that family law hearings and privacy applications do not ease the problem simply because the press can contest them.

Therefore, those high net worth couples who are considering separation, have to do all they can to ensure that their personal information is hidden from the eyes of the public through avoiding any court proceedings.

This can be made possible by family mediation or arbitration which enables both parties to come to a solution, whilst also avoiding any form of interest from the media.

This article was provided by family law specialists K J Smith Solicitors, an experienced family law firm operating in London, Reading, Henley-on-Thames, Guildford and Basingstoke.

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Government Promise Domestic Violence Legislation Reform

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Kerry Smith
Kerry Smith
Head of Family at
K J Smith Solicitors

Did you know that in a recent survey of 2,000 people, just one out of every five of the respondents believed that it was easy to spot domestic violence?

Less than one third of them believed that domestic violence could happen between former partners.

Domestic violence is, generally, considered to be physical or verbal abuse. However, psychological and financial abuse can also occur.

The latter two are dreadfully difficult to spot, and even harder to prove. This means that many people who commit that type of domestic violence are actually getting away with it.

The problem is many people do not recognise certain situations as domestic abuse.

For example, less than half of the respondents believed that keeping a tab on the spending of a partner is abuse. This means that many people could be carrying out domestic abuse, even if they are not aware of it.

That being said, the Crown Prosecution Service has put a lot of effort into ensuring that those who commit domestic abuse are punished for their crimes.

In fact, in 2014, over 107,000 people, the vast majority of them men were prosecuted for domestic abuse-related crimes. This is a far higher number than ever before.

Michael Gove, the justice secretary, pledged to reform domestic violence legislation. At the moment, he believes that it is far too easy to reoffend. He also believes that the length of time that a trial takes from start to finish is a form of abuse in itself, as some cases take a couple of years to get to trial.

Gillian Guy, currently working for Citizens Advice, believes that it was a good sign that the government are starting to tackle domestic violence properly, or, at least, entertain the notion of making improvements to the law.

She believes that the reforms that the government is proposing is likely to reduce the amount of stress it takes for a victim to get the help that they need, either on a legal basis, or on a basis where they can be helped psychologically and ensured that it is not their fault.

She also believes that reforms in legislation may have an impact on the recognition of abuse. As mentioned previously, many people do not realise that they are a victim of domestic violence and are less likely to report it.

New legislation will also aim to make coercive control illegal and ensure that those who try to control their partners, even after a separation, will feel the full force of the law.

Sadly, at the moment, there is still very little being done when it comes to legal aid.

As you may well know, a person can only apply for legal aid in domestic violence cases if they have evidence of domestic violence in the past two years. Sadly, many victims do not have the evidence that is required and, therefore, people are not being punished for their crimes.

More articles by Kerry Smith

About Kerry Smith

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

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