As many couples are finding the two-year wait before separation tedious, now is the time to enforce the much faster and smoother route of no-fault divorce, writes Hazel Wright
On 29 December 2017, the news reports of the ‘20 second’ divorce of Louise Redknapp, former pop star and dancer, from her ex-footballer husband Jamie, made family lawyers cringe. We know that there is no such thing as a quickie divorce, and in fact, the couple separated in July 2017. The process of divorce takes at least four to six months, which is why the legal process was ready at that point for the judge to grant decree nisi (the first, conditional decree of two in the divorce process, which is not completed until the later decree absolute).
The former couple have stressed their wish to continue to be good parents. It is wrong and unhelpful to this family that, in order to divorce in 2018, Mrs Redknapp has had to set out particulars of her husband's unreasonable behaviour in order to satisfy the law. The hostility of that allegation is never a good starting point for the painful process of divorce and reaching financial settlements, let alone making good arrangements for their children to have two homes.
Each divorce, no matter what the allegation, must be based on the irretrievable breakdown of the marriage. This is proved if certain things have happened.
There has long been a campaign for ‘no fault divorce’ to be available to couples who want to split amicably and quickly, often for the sake of their children. At present, the only way they can do that is to allege the other person has behaved badly – either by having an adulterous affair (not available to same sex couples), or by behaving so unreasonably that the divorce petitioner cannot be expected to live with them.
The meaning of 'unreasonable behaviour' will be decided by the Supreme Court in May 2018, when it rules on the request for a divorce by the long-suffering Mrs Owens, who has lost twice in lower courts, for a divorce from her husband.
Otherwise, there is a minimum requirement to live apart for at least two years.
If the law changed to allow couples to divorce by mutual agreement without having to put their lives on hold for two years, there is of course concern that divorce would be easier. It would not amount to divorce on demand, as it could still be defended. But the decision to divorce is not an easy one for anyone. Nor is staying married when the marriage is clearly over.
The annual cost to the taxpayer of family breakdown is estimated at £48 billion. That includes post-divorce greater reliance on state benefits, a drop in productivity at work during divorce and the use of courts processing the legal requirements. It does not take account of cost to individuals in health, both emotional and physical, or the huge stress of marriage breakdown.
There is growing evidence from bodies such as Tavistock Relationships and The Early Intervention Foundation (among others) that providing support when a couple’s relationship is in difficulty may not save their marriage, but will definitely improve their relationship and behaviour, and that positive change also benefits their children.
All family lawyers have experience of advising reluctant clients to allege bad behaviour so that the divorce process can begin. Only on decree absolute can an enforceable financial settlement be made. Capital Gains Tax (CGT) rules favour no fault divorce within two years of separation. Spouses can delay paying CGT on inter-spouse transfers made in the tax year of separation. The departing spouse has 18 months to transfer his/her interest in the family home, before being liable to CGT. Waiting for two years to finalise these transfers costs money at a time when there are many other expenses.
Prominent individuals have begun to voice their support for a change to divorce law, including the President of the Family Division Sir James Munby, the President of the Supreme Court Baroness Brenda Hale and former Lord Chancellor Lord Falconer. Many other countries already have no fault divorce, and it is time England and Wales got up to speed.