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Is It Time For No Fault Divorce In England and Wales?

Of course, we are talking about the appeal of Mrs Owens before the Supreme Court in May this year against the decision that she be denied a divorce further to her divorce petition in 2015 citing the fact of her husband’s unreasonable behaviour.

In order to obtain a divorce in England and Wales an applicant (until recently known as the ‘petitioner’) must demonstrate to the Family court that the marriage has irretrievably broken down, and she/he does that by relying on 1 of 5 facts.

In a nutshell, these are adultery, desertion, 2 years’ separation with consent, 5 years’ separation or, in the case of Mrs Owens and countless other applicants, so-called unreasonable behaviour.

The situation as it stands is prescribed by the Matrimonial Causes Act 1973, and guides the Family court that it can only determine that the marriage has irretrievably broken down, on an unreasonable behaviour application for divorce, if the applicant satisfies the court that the respondent spouse has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent (MCA 1973, s. 1(2)).

In Mrs Owens case back in 2017, the court was not so satisfied, and her divorce was refused by Judge Robin Toulson QC. Mrs Owens took her case to the Court of Appeal, to save herself from being trapped in what she described as a loveless marriage until 2020. The decision was upheld by the Court of Appeal, with the President of the Family Division, Sir James Munby, stating that the appeal judges were not prepared to interfere with the earlier decision.

We of course know that to establish unreasonable behaviour draws on both subjective and objective elements. The applicant must believe that the behaviour constitutes unreasonable behaviour to this standard but, with the word ‘reasonably’, comes a requirement for objectivity.

In Mrs Owens case, it was clear that the court expected a certain standard of ‘bad behaviour’ to have been reached to enable a successful petition and, even though Mrs Owens believed her husband’s behaviour was sufficiently bad to justify a divorce, the court decided that it was not.

So what’s left for Mrs Owens to do in this situation? She took her case to the Supreme Court and this was heard in May this year. If she is unsuccessful, she will have to wait until 2020 to rely on 5 years’ separation to obtain her divorce. All the while she continues to live separate and apart from her husband, whilst being denied the financial remedy she would have access to within divorce proceedings.

Resolution: First for Family Law, intervened in the proceedings, and are using the Owens decision to advocate ‘No Fault Divorce’. Nigel Shepherd, Resolution’s immediate past Chair, has said, “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”.

Onions & Davies Solicitors is championing the cause and our family lawyers believe that it’s time for change.

Currently, if parties wish to divorce within 2 years, Resolution lawyers repeatedly find themselves in the paradox of helping their clients find a constructive, child-focused resolution to the end of the marriage, whilst having to justify the reason for the divorce to the court. It doesn’t take much to see the merit in a system which takes the blame away.

However, even if Mrs Owens is successful, this will not ‘end the blame game’. We need Parliament for that. It’s just a step closer in the effort towards a system of no-fault divorce – what Resolution is calling ‘a better way’.

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Solicitor, David Lago, talks about the organisation – Resolution – and what being a member means to him.

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Resolution provides a code of “good practice” for Family Lawyers, for dealing with client, the “other side”, and/or their solicitors.

It provides a professional and non-confrontational, and conciliatory approach to managing the process of Family Law issues whether divorce-related; cohabitation breakdown, children or financial/property issues.

Resolution provide an information and resources website for clients or parties as well as Family Lawyers involved in separation/divorce and above issues.  “I often refer clients to the Resolution website and it is a very useful resource”. (www.resolution.org.uk)

Resolution publish a professional “Good Practice” Guide for all aspects of our work.  Family Lawyers who follow the Code of Practice believe in constructive resolution of issues that arise when a couple or family split up.  This focuses attention on the best interests of the children, and an approach to Family Law that is sensitive, cost-effective and aimed to promote an agreed settlement of issues where possible.

“Being a proud member of Resolution provides me with an anchor for my professional role in giving advice and managing the process of a client’s case.  It may mean I sometimes give advice that a client is reluctant to hear; that I try not to exacerbate the anger or distress that come with relationship breakdown.

When a Resolution member on the other side, then I am confident we will both try to consider the parties and children involved and that respect for, or awareness of, their positions and circumstances is factored into discussion and advice with our respective clients.

Resolution has been a guiding light for all the years of my practice as a Family Solicitor.  My colleagues and I at Onions & Davies Solicitors abide by the Code of Practice and offer our clients a non-confrontational, calm and rational approach to resolving their issues.”

For an appointment with one of our Family Lawyers at Onions & Davies Solicitors, please contact Sharon on 01630 652405 or send an email

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Protecting Your Assets Against Your Children’s Divorce.

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The purpose of this article is to show how you can use Trusts, either within your Will or set up in your lifetime, to protect assets that you wish to leave to your children but which you would not want to be the subject of a divorce settlement.

Recent figures from the Office for National Statistics show that the divorce rate rose by 5.8% in 2016, with 8.9 divorces for every 1,000 same-sex couples. The increase is mostly due to more people of an older age getting divorced. The average age is now 46.1 for men and 43.7 for women, having increased every year since 1985.

Here at Onions & Davies Solicitors, we have an experienced and approachable family law team that can advise on all issues surrounding divorce, the division of assets and arrangements for children. If this is relevant to you or your children please contact David Lago on 01630 411223 or email.

Is your child going through a relationship break-down at the moment or considering divorce? Do you fear that this could be the case in the future? Putting assets that you would otherwise leave to that child in a Trust would protect them and would provide opportunities to benefit them (or perhaps their children) in other ways. When all danger has passed, the assets can be released and the Trust can be wound up.

There are many forms of Trust. They can be used for a multitude of purposes, including;

  • Saving tax
  • Protecting assets from payment of care fees
  • Keeping control of assets while removing value from your estate
  • Providing the flexibility of a range of beneficiaries, who you can choose between at a later date
  • Protecting assets for disabled beneficiaries, whilst not making them lose state benefits
  • Controlling how assets are used for wayward beneficiaries
  • Protecting assets from situations such as divorce and bankruptcy

Chris Milne, a full member of the Society of Trust and Estate Practitioners, specialises in this area. If you would like further advice on how Trusts may help your own situation or that of your family members, then please contact him on 01630 411221 or email.

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Bear It In Mind – Making Good Decisions Following Separation

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How married couples deal with the finances following a separation can vary from one person to the next.  Some people just want to move on and deal with things as quickly as they can and others choose to leave things for a while for one reason or another.

Either way, our family lawyers at Onions & Davies Solicitors can support and advise you through this experience and will do so in a way that suits you.

When the time comes for a party to consider divorce and separating marital assets there are many factors to consider.

Before the parties can divorce in England & Wales, they need to have been married for at least a year.

Resolving the finances can be a process that neither party necessarily wants to engage in but is a process that will become necessary even if there are no assets to separate. Until the finances are resolved by Consent Order, future matrimonial claims can be lodged even after divorce.

The courts take a number of factors into consideration when dividing matrimonial assets and these are known as the ‘section 25 factors’. The length of the marriage and the ages, resources and contributions of the respective parties will be relevant, as well as whether there are children of the family to consider.

Matrimonial assets include pensions, property, savings etc. The division can include inheritance money, which is often a sore subject, but one that needs taking into consideration in the appropriate circumstances.

The assets of either party at the point of separation are relevant and can form part of the ‘matrimonial pot’. Any asset that is obtained by either party following separation will need to be disclosed during the course of either proceedings or negotiations. When proceedings have been issued the Court, require there be full and frank disclosure of your financial position. Full and Frank financial disclosure on a voluntary basis is also advised where matters are not litigated.

The division of the assets can, of course, be done by agreement between the parties and it is recommended that any agreement reached is with the benefit of financial disclosure.

Our family lawyers at Onions and Davies Solicitors can provide the support, advice and assistance necessary to guide you through achieving financial remedy on divorce.  Please contact Sharon for any further information on 01630 652405

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Spousal Maintenance On Divorce – It Isn’t What It Used To Be!

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Predicting the precise outcome of a financial remedy case on divorce is impossible. Every case is different. The presiding legislation has not been updated despite requests for legislative guidance further to the Matrimonial Causes Act of 1973, and we, as practitioners must, therefore, interpret how the case might settle for our clients based on case law. From this, we are able to give our clients an indication as to the range of possible orders the court might make in their case.

The case of Waggott-v-Waggott has seen a ruling by the Court of Appeal that will shape the advice given by divorce lawyers to their clients in respect of spousal maintenance, with guidance given as to the treatment of earning capacity and the principles of sharing and compensation.

This is a high net worth case and a marriage of 12 years, although the parties had been living together since 1991. They had one child whereupon the wife left her role as an accountant and did not work again.

This case tells us that the statutory steer to a clean break imposed by the Matrimonial Causes act 1973 should prevail, causing the wife to lose her argument that the husband’s earning capacity should be classed as a matrimonial asset to which the ‘sharing’ principle applies, and her argument that she should not be required to use the capital awarded to her in the settlement to meet her income needs. The Court said to extend the sharing principle in the ways suggested by the wife would undermine the court’s ability to effect a clean break.

The case is leading lawyers to understand that spousal maintenance awards are not as generous as has previously been the case. The end result for the wife was that her claim to increase the maintenance awarded to her was denied and, indeed, the original award was challenged when the Court of Appeal imposed a term order of 3 years with a Section 28(1A) Bar having the effect of preventing the wife from making an application to extend the term.

For advice about resolving finances on divorce, call 01630 652405 and make an appointment with our divorce solicitor, David Lago.

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