When laws are outdated, the financial expense can be a burden for everyone–parting couples and courts alike. In England and Wales, the court system still forces one party to accept blame for the termination of a marriage. The result is obvious. Neither party wishes to accept that they are to blame for what happened, and therefore a court solution is required. This waste of time could be avoided if only England and Wales would adopt a no-fault divorce system with a clearly outlined checklist for how to divide wealth.
A new report released by the Nuffield Foundation studied 500 divorcing couples and came to some important conclusions. At the top of the list is exactly what you’d expect: the law itself is the reason that most people go to court in order to defend themselves from blame. When you file for divorce in England and Wales, you have only one option. The grounds is described as an irretrievable breakdown of marriage, which essentially means that one party or another committed adultery, behaved improperly as per their vows, or deserted the marriage altogether.
The marriage is also considered to have broken down if either party can prove that a long-term separation of at least five years has occurred, or if cohabitation has not occurred in at least two years.
When one party does not acknowledge blame, a judge ultimately settles the dispute. Most of these cases result in unfair judgments because they aren’t determined by the facts so much as who has the greater ability to bargain. The aforementioned study confirms that some deals “appeared intellectually dishonest.”
One example of how these antiquated laws affect those who are stuck in marriages is Owens v Owens. Tini Owens is a sixty-something woman who says that a court judgment overturned her attempt to divorce her husband. The two have been married for forty years, and now Tini feels like she has no way out of a “loveless and desperately unhappy” marriage.
The law that helped decide this case, and others, is about fifty years old.
It seems absurd that the court should get to decide whether or not a divorce occurs. The court lacks a fair discovery process to help determine what led to the divorce proceedings in the first place, yet it can grant or deny a divorce favoring one party based on interpretations of an old law. So far, social equality activists haven’t been able to petition lawmakers to make any meaningful attempts to change the old laws.