Reforms in England and Wales would see the financial consequences of the breakdown of a marriage being separated entirely from divorce itself.
It has been reported that a single form will be used to deal with all financial issues arising from the breakdown of a marriage. Some commentators have suggested that such a system would “cheapen divorce” and “make the break-up of a marriage about nothing more than money”. However, in our view such criticisms are unfounded and the proposed reforms to the law are not in fact as far reaching as some might think.
Financial Considerations of Divorce
In Scotland, it is well-established that the financial aspects of a couple’s separation can be dealt with entirely independently of divorce itself. Indeed, in most cases, agreement is reached between parties’ on all financial matters before divorce itself is addressed. There are a variety of different methods that couples can use to resolve the financial aspects of their separation, including negotiation between their respective solicitors, mediation, arbitration and collaborative law. Where such methods are successful, and agreement is reached between parties, a contract (known as a Minute of Agreement) is executed between them dealing with all of the financial aspects of their separation. If the couple have children under the age of 16, the Minute of Agreement can also address matters such as the day-to-day arrangements for childcare and payment of support from one parent to the other.
Obtaining a Divorce
Once a Minute of Agreement has been signed by the parties in Scotland, divorce can be obtained on a purely administrative basis. An order for divorce itself must be obtained from a court, but the judge need not be party to any information at all about the financial agreement which has been reached. Before granting an order for divorce, the court must be satisfied that the marriage has irretrievably broken down – which can be established by five different grounds. Provided that such grounds are established, divorce will be granted by the court without further judicial enquiry.
Given the clear demarcation between financial matters and divorce itself, the reasons for the breakdown of the marriage have no relevance to financial aspects of a case. In both England and Scotland, a “no fault” system of divorce is well-established, and the behaviour of a party will only be taken into account for the purposes of finances if such conduct has had an impact on the parties’ financial resources.
Court involvement and Divorce
It is only in cases where parties are unable to resolve matters by way of agreement or other process that the wider involvement of a court becomes necessary. In such situations, the court can be asked to make orders of a financial nature as well as an order for divorce itself. Even in such cases, however, financial matters are still considered independently from the reasons for the breakdown of the marriage.
In Scotland, the separation of financial matters from the legal formalities of divorce brings with it the benefits of simplifying and speeding up what is often an emotionally difficult and costly process. Any reforms which seek to streamline that process for couples in England and Wales are, in our view, to be welcomed.