The extent to which the divorce law in England and Wales is no longer ‘fit for purpose’ is clear when it is compared to a number of international jurisdictions, according to a new report.
Divorce is more straightforward in many other countries including Chile, India, China, Russia and Argentina according to the research, which was carried out by the family team at leading law firm Penningtons Manches.
The law – which is due to come under the spotlight this week in a key test case in the Supreme Court – has remained unchanged for nearly 50 years and has long been lamented by lawyers, judges and campaign groups due to the legal contortions that must often be performed in order for one spouse to satisfactorily demonstrate ‘fault’ against the other.
The team reviewed and analysed current approaches to divorce in more than 20 jurisdictions worldwide in order to create a multinational barometer of divorce laws. The jurisdictions where divorce was deemed to be more difficult than in England and Wales included the Philippines, where it is not possible to divorce at all, Israel, where divorce is governed by religious courts, and the UAE, where fault must be proven and a court-appointed conciliator must attempt to reunite couples.
Kerry Fretwell, one of the report’s authors and a partner in Penningtons Manches’ family team, comments:
“With high profile divorce stories in the news every week, you’d be forgiven for thinking getting a divorce is easy and uncomplicated. Our report shows that couples divorcing in England and Wales face a more convoluted process than their contemporaries in a number of jurisdictions that one may think of as traditionally more conservative.
“Family lawyers find themselves encouraging clients to prepare behaviour particulars that are exaggerated or inflammatory and likely to cause further distress and acrimony simply to satisfy the court, which many find morally repugnant.”
She added: “Mrs Owens is at the Supreme Court this week because in effect the law as interpreted by the courts to date says a wretchedly unhappy marriage is not a good enough reason to grant a divorce. She has had to stay married against her will as the judges who have considered the case have had to apply the law as it stands. But in 2018, should anyone be forced to remain trapped in a miserable marriage for five years?”
The report, Escaping the labyrinth: the international divorce law barometer, can be downloaded here. Its primary source material is the fourth edition of Thomson Reuters’ Family Law: A Global Guide, published in March 2018.
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