Britain’s divorce law has been slammed as being outdated and manipulative, because that jurisdiction still does not recognise no-fault divorce.
In the case of Britain’s divorce culture, the problem goes beyond exploitative individuals and lies deep within the system itself.
Because there is not a no-fault divorce, unless you want to wait years, you need to establish that one of you did something intolerably bad. You have to put down that bad thing on your divorce petition and you have to be ready to prove it.
Such proceedings are still forced through an outdated, conduct-based system, which attributes blame for marital breakdown. This forces couples to denigrate each other, sometimes completely artificially, to support the profoundly wrong notion that one of them has to be at fault for their parting. It leads to a blame game, which can shred the last vestiges of love and respect which a couple has for each other, often making it impossible to remain friends or effective co-parents.
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Often, no one is at fault. Despite love, patience, and months and years of effort, a relationship ceases to work. The requirement to attribute responsibility comes from a bygone era – in which divorce was seen as contrary to public policy – and indeed, to the dominant moral code. This was because one of the spouses – by the vast majority, the wife – would not have no other means of financial support.
The money side is just as messy. The divorce law is so unpredictable, and so unclear, that it’s hard for couples to negotiate an out-of-court settlement, because they don’t know what they’re really entitled to. Society is changing, expectations of gender roles are changing, and the law isn’t keeping up. A clear set of rules for who gets what, and how to work it out is desperately needed. But as no one can agree on them, it’s all left to the judges’ discretion – you just have to hope you get one who favours your point of view.
Because of this difficult system, many couples in Britain are choosing the sign financial agreements prior to getting married.
This means if they go ahead with a marriage, an exit doesn’t have to cost them dearly, either financially, or emotionally through years of bitter struggle. A pre-nup (or financial agreement) setting out how to deal with money, social media, arbitration (via the private courts), parenting arrangements and other matters if needed to may mean a divorcing couple doesn’t have to drag their divorce through the courts.
Gary Lineker has called for the divorce process to be simplified with a “mathematical equation” for the splitting of assets between former spouses, following his recent divorce from his second wife.
The 55 year old presenter and former England footballer has recently experienced the disintegration of his second marriage to model Danielle Bux, 19 years his junior. Announcing their split at the start of 2016, they said they were using a government website to streamline the process at a cost of just £400 after his previous experience with divorce lawyers.
He also proposed a one-size-fits-all rule to prevent the high cost of such divorces. “I think there should be a mathematical equation that goes straight to the courts and they sort it out.”
Divorce Law in Australia
In Australia, the Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
The Court cannot make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
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The general principles for a court to settle financial disputes are based on:
Working out your assets and liabilities; that is, what you’ve got (including superannuation) and what you owe; and what they are worth.
Looking at the contributions made by both parties during the marriage or relationship including:
- direct financial contributions to the the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
- indirect financial contributions to the the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
- direct and indirect non-financial contributions to the the acquisition, conservation or improvement of any of the property.
- contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
The future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties
In addition, the Court, as far as practicable, is to make orders which will finalise the financial relationship between the parties (Section 81 of the Family Law Act).
Where it is appropriate, parties are encouraged to reach agreements without a court hearing.
When a court is making a parenting order, the Family Law Act 1975 requires it to regard the best interests of the child as the most important consideration. Parents are encouraged to use this principle when making parenting plans.
The Family Law Act makes clear that both parents are responsible for the care and welfare of their children until the children reach 18, and there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
In Australia, a collaborative approach between separating couples is encouraged, rather than a combative one.
If you need advice about separation, divorce, financial agreements, parenting arrangements or property settlements, contact us to speak to one of our friendly, experienced family lawyers. We offer a free, 10-minute phone consultation.