same sex marriage - lovely lesbians kissing on a beach

Unexpectedly, same-sex marriage might force Northern Ireland to have a government again

England, Wales and Scotland all legalized same-sex unions in 2014. The Republic of Ireland voted in a referendum to legalize it in 2015. Northern Ireland remains one of the few territories within the EU zone that still bans same-sex marriages. Northern Ireland however possesses its own parliament, and their own independent judiciary and court system, though the highest court of appeal remains the UK Supreme Court. Northern Ireland also has its own unique issues, such as the fact that it doesn’t quite have a government right now.

The British Parliament decided to slide past the collapsed Northern Irish Assembly to force the government of Northern Ireland to legalize both abortion and same-sex marriages. Landslide votes in the House of Commons do not yet automatically change the law in Northern Ireland. However, since the Assembly in Stormont, East Belfast remains defunct since its collapse in 2017, if this assembly doesn’t resume its duties by the deadline of October 21, the amendments will stand and come to force.

MPs from the Democratic Unionist Party (DUP) voted against and argued that the parliament in London was drastically overreaching their grasp and such matters should remain to be resolved by Stormont. And they will. If the DUP and Sinn Fein could come back to terms in the assembly and restore the government.

2 gay men in sea water

Unexpectedly, many different-sex couples want to have the right to have Civil Partnerships over Marriage too

Prior to the legalization of same-sex marriage in the UK, there was Civil Partnership Act 2004 that allowed them to enter into civil partnerships rather than marriages. Over time the rights assigned to civil partnerships have been much the same as marriage. Unexpectedly, it was raised that the Civil Partnerships Act 2004 might be against the EU Convention on Human Rights for being discriminatory.

The Civil Partnerships, Marriage and Deaths (Registration etc.) Act 2019 will formalize options allowed to heterosexual couples who wish to enter into a civil partnership rather than marriage. Why would they prefer this form of civil union? Here are some reasons:

  1. Marriage carries with it the historical and religious ‘baggage’ that the couple may feel uncomfortable with endorsing.
  2. Marriage is a rite that involves inviting family and friends and hosting a celebration afterwards, some may feel this is too expensive or an invasion of their privacy.
  3. Cohabiting couples are surprised to learn that they don’t actually have as many protections equivalent to marriage as they had assumed.
  4. This will allow transition from or into marriage if one of the couple undergoes a sex change operation.
  5. Legitimacy for children born at a time parents were not formally married.
  6. The recognition of overseas relationships.
  7. Etc.

Voiding a civil partnership is similar to divorcing, often served by the same form and assisted by the same divorce solicitors. There are some peculiarities to civil partnerships however, such as adultery by itself not a valid ground for dissolution, and of course that it may be voided by entering into marriage.

Expectedly, No Fault Divorce will make divorce easier and less costly

The current system of divorce is adversarial, which induce unnecessary stress on the family. Regulations state that one party must be at fault, or that living with them is intolerable. Couples must live apart for at least two years before they may separate fully. Also, one party may deny the divorce – but if they live apart for five years only then will consent no longer be required.

The consultation paper Reducing Family Conflict: Reform of the Legal Requirements for Divorce also stated how the current law aggravates family conflict.

  • A. The question of fault forces couples to take up hostile positions

The need to cite evidence means digging up whatever allegations necessary to prove fault, which may aggravate and humiliate the respondent that the marriage itself becomes irreparable. The defense process increases acrimony, instead of a solution to family justice.

Once the petition has been filed – because of the need to prove fault and the provisions that require lengthy separation before a non-acrimonious dissolution is granted – this strictly works against agreement and reconciliation that could have saved the marriage.

  • B. The law doesn’t actually address the reasons why the marriage breaks down

The divorce petition is concerned only with the fact that the marriage has broken down, not why. The reasons given in the petition may not even be true, but simply the easiest and fastest option for both concerned. Adultery, separation, and other acts that may be grounds for divorce could be simply symptomatic of a desire to dissolve the matrimony.

  • C. The law is open to manipulation

The current law was remarked to be ‘procedurally unfair’, with only 2.28% of all petitions are actually contested in court. Due to the need to provide evidence, even if respondents may agree to the divorce, they may feel it is necessary to disagree vehemently with the allegations in particular used to support the petition.

In practice, many family lawyers and judges feel that the defense is costly, unhelpful, and ultimately futile and imposes unnecessary burden on the courts. Furthermore, outcomes usually reflect the relative bargaining capacity of both parties, and can be misused by vindictive spouses to make the divorce unnecessarily difficult. Divorce terms can be financially abusive even after escaping an emotionally abusive marriage.

Divorce petitions can be considered not a legal issue in itself but a means to construct a narrative that would secure a legal divorce. Those involved, even when they both agree, are highly incentivized to manufacture ‘facts’ to support their petition.

  • D. The current law does not support the emotional needs of children

Research has shown that although children are inevitably affected when their parents separate, it is a far greater cause for social and behavioural problems to see the hostility between them. Where children have been encouraged to take sides, their relationship with both parents are instead impacted severely as from the conflict of loyalties and a child’s keen awareness of hypocrisy.

Furthermore, due to the artificial requirements of consensual separation as grounds for divorce, many are forced by financial reasons to live ‘separately’ as two households under one roof. This creates an artificial atmosphere that is confusion and harmful to children.

Proposed changes to reform the divorce process are concerned with three main outcomes.

  • That the decision to divorce is a measured one, that gives spouses all opportunity to change course.
  • That they are not put to legal requirements and hardship that do not serve their or the state’s interests.
  • To avoid ongoing conflict and poor outcomes for children.

Couple in London, UK

Unexpectedly, the UK actually sees the lowest level of divorce rates in 45 years

According to the Office of National Statistics, in 2017, there were 101,699 divorces down from 106,959 of 2016. This is the lowest since 1973. Divorces peaked in 1993 with 165,018; 1985 with 160, 300; and first in 1972 with 119, 025. However what is missing is that 1972 was also the record highest in marriages with 426, 241 marriages that year. There were much less divorce rates prior to the Divorce Reform Act of 1969, effective 1971, for obvious reasons.

All this shows is the ongoing decline in couples choosing to get married, which means overall there are fewer couples to divorce,” spoke Frank Young, head of family policy at the Centre for Social Justice, explaining that the drop in divorce rates was no reason to celebrate. “Marriage is increasingly a middle-class perk with 87 per cent of higher earners getting married compared to only 24 per cent of lower earners.

Since the 1970s, marriage rates have been decreasing while the divorce rates have more or less managed to remain stable. Waxing nostalgic about 33% of divorces happens when there are 426, 249 marriages to merely 119,025 divorces. In recent years over 45% of marriages end in divorce because since the 1990s, marriages dropped hard below the 300,000 per year rate while divorces hovered around the 160,000 per year rate. 2015 was the best of recent years at 42%, with 239, 020 marriages compared to 101,055 divorces.

It is hoped that by making marriage easier, and making it less painful to separate, this might encourage more marriages that promote stability in the family; wherein there are two partners facing the same challenges and giving support to their children.

Women should not need marriage for financial security and social status and, increasingly, they don’t. Often, marriage makes women poorer, because it creates dependents,” Tanya Gold wrote for The Observer.

 

divorce law myths

There’s no getting around people who seem to think they know everything they need to know about divorce. Unfortunately, beliefs are not always reality and some people could end up stepping into something they are not prepared for.

So, let’s look at some of the leading myths that circle around divorce…

Your Spouse Must Agree To Divorce

Although it’s always easier if you both agree to a divorce, you do not need your spouse’s consent to move forward. If the petition shows that the marriage is falling apart because of your spouse’s love affair, you do not need them to agree to the divorce. All you need to do is let the court know that your spouse has been served with the petition. No doubt, in a perfect world, it would be great if the two of you could sit down and work out the details but in many cases, that’s just not going to happen.

divorce agreement

You Will Be Responsible For The Costs

That’s not necessarily true. If you issue a petition that states your spouse has been having an affair or another behaviour, you can request they pay your costs.

A 2-Year Separation Will Allow the Petition To Go Through Much More Quickly

The procedure for divorce is the same and will take the same amount of time regardless of facts that might show the marriage has completely and totally fallen apart. If you choose to wait until the two of you have been separated for 2 years or more, you must wait until those 2 years have passed. Everything else, after that period of time, will be the same including the entire process and the time frame.

getting divorced

A Divorce Will Stop All Financial Responsibilities Between Both Of You

Again, this is just not true. A divorce will not stop all financial claims brought on the other. It is highly advised you seek legal counsel to understand the ramifications of being divorced without a financial agreement firmly in place.

The Decree Nisi Is The Final Degree For Divorces

First, a decree nisi (or rule nisi) is a court order that does not have any power unless certain conditions are met. Once the conditions are met, the ruling becomes a rule absolute and is binding. There are people who fling divorce nisi around believing they are now divorced. Again, wrong! This decree is only a step halfway through the entire process. After, literally, one year and 6 weeks from the declaration of the decree nisi will the decree absolute be put in place. The decree absolute is the final decree for a divorce. For more info on this get in touch with a good family and divorce solicitor.

divorce solicitors

You Can Issue A Petition Based On Irreconcilable Differences

Currently, this country only has a full-based system. The exception might be if you both agree to a divorce and have lived apart for 2 years or more. The courts, at this time, do not recognise no-fault divorces like some other countries and some argue that this is outdated and designed to make couples suffer.

 

Divorce is the dissolution of marriage within legal bounds, and dealing with issues connected to divorce can be very traumatic. Even so, many marriages end this way. Popularly thought to be a very common issue in the United States, but in actuality divorce rates in Europe are not much better and in fact may be worse.

It may surprise you to know that by recent survey data, both the US and the UK actually hover at around 40% divorce rate compared to others like Portugal, Belgium, and Denmark, which break 50% to 60%.

Divorce can exhaust you mentally, physically and financially so it is just right to know the direction you’re headed when thinking about divorce. Divorce laws are of course different for every country, but in some ways just divorce laws between states can be as varied as entirely different countries. As much as the US and the UK have strong similarities there are also important cultural differences.

With these oddly similar numbers, do they view marriages and divorce the same way?

1. There is no No-Fault Divorce in England and Wales.

There are two ways to approach divorce – Fault and No-Fault.

The first one is the No Fault divorce, which includes lack of support from your spouse and any other cause without any rational possibility to reconcile. This includes two parties living apart from each other for three years or more. Another case would be due to mental health issues that last for more than three years, marriage could be ended as there may be no chance for recovery.

The other type is the Fault Divorce, which often times the most common basis for divorce conditions. This includes cruelty or bad behavior and abuse towards the partner (whether mental or physical), adultery or infidelity, felony (when a partner commits crime and imprisoned for more than a year) and abandonment (when partner leaves the other for more than a year).

England and Wales does not have the provisions for no fault divorce; that is, one party cannot unilaterally decide to end the marriage due to differences. A fault-based system imposes penalties on the misbehaving party in a relationship, but of course when neither want to lose their properties and rights to their children they must have an option other than suffering a loveless marriage.

Among the grounds for divorce there is one way to achieve functionally the same result, when married partners live apart with mutual consent for at least two years. However, this period may be prolonging the pain of an irreconcilable marriage and imposes greater burden on their children. Ireland has a harsher requirement, four years before divorce is allowed under grounds of separation.

Scotland had No-Fault Divorce provisions since 2006.

2. Minimum amount of time to be married before allowed to file for divorce

In the United Kingdom, the couple must be married for at least a year prior for a divorce case to be filed for petition.

In the US, in theory you can apply for a fault-based divorce almost immediately if the marriage would be harmful. For amicable no-fault divorce, it generally depends upon the State but about one year of separation.

Alimony or terms of spousal support still tends to be awarded based the length of time being married.

3. The Decree Nisi and the Decree Absolute

Divorce proceedings in the US have an almost clinical efficiency. Most of it is spent in talks and negotiations between lawyers, only taking it to court when there must be a judgement laid on adversarial conditions regarding custody and properties.

Divorce proceedings in the UK, being an at-fault mechanism, is between the petitioner and respondent. The respondent may choose to defend (against) the divorce or file a divorce petition of their own. When the intent to defend or both sides have filed divorce petition, the court will schedule a hearing.

The Decree Nisi and the Decree Absolute are the final two stages of divorce proceedings. When the court issues the Decree Nisi, it has found that the marriage is no longer viable. After a specified amount of time, if the Decree Nisi is not given grounds to be retracted, it will become a Decree Absolute, it does not apply merely to divorce proceedings.

Even so it is possible that the court can suspend divorce process even after issuing the Decree Nisi when there is a reason for both parties to reconcile with each other. Only the petitioner may ask for this suspension.

4. Child Support Agency and maintenance

There is no court power in terms of dealing with maintenance of the children. It is now only limited to a number of special cases, when both parents apply for order of consent. These can happen in payment of school fees or when there are care costs for a disabled child. CSA assesses based on information provided and will chase when defaulted.

In this case, lawyers can assess their client’s capacity to make an application to the courts or leave it for the CSA.

In the US, a parenting plan is required and both parties are encouraged to decide on custody and visitation agreements.

5. Divorce automatic resident rules

The effect of divorce decree for a property on a different country may vary. Logistically, it would be best to file the divorce decree in the country where most of your assets are located.

Interestingly, one only needs to stay in the UK for 183 days or more to be considered a resident.

But even if you don’t, you can still be automatically considered to have legally been a resident of the UK if you have a home in the UK for (owned, rented, or lived in) more than 90 days and present in said home for at least 30 days. If you have sufficient family ties to the UK and you have spent more than 15 days with them, you may be considered a resident for jurisdictional purposes.

 

US laws allow you to file for divorce even if you were married overseas. If either you or your spouse is American, jurisdiction still often a matter of where you presently live than where you filed your marriage. Divorce across borders have much greater issues with regards to custody and division of property.

 

Article by Hadaway & Hadaway solicitors in the North East UK.