Diary of a Divorce Lawyer: October 2020

1st October 2020 Family Law

As the weather changes and children return to school, late September and early October have traditionally been busy months for family lawyers. For many couples, the summer can represent the last chance to guide a relationship back on track. However, the current rules around foreign travel and restricted movement have prevented many families enjoying their annual get away. For some this has meant that lockdown has highlighted their differences and their relationship has reached a crisis point. 

The impact of the last few months on families was highlighted to me recently when I was invited to meet some school mums for a socially distanced drink on the terrace at the Richmond Hill Hotel. 

One friend, Sue, has been married to Ben for 20 years and they have two children together. According to Sue, she and Ben have little in common anymore, other than the children. They have been particularly miserable being locked down together. She feels that the marriage has been over for a number of years and that they both need to move on with their lives separately. 

Sue has been attending walking therapy In Bushy Park, with a local therapist, Jo Warboys. The therapy has helped her clarify in her own mind that she wants a divorce, however, she does not want to blame Ben for the breakdown of the marriage by citing ‘unreasonable behaviour’ in the divorce petition, as she recognises that in reality they have just drifted apart. I talked to Sue about the no-fault divorce bill, which passed through Parliament earlier this year. The new bill means that from autumn 2021, couples will not have to provide reasons for wanting a divorce and can even file for divorce jointly. I explained that the new system would assist couples who have agreed that their marriage has ended and have agreed to split amicably. 
Sue told me that she had read about the changes but, like many clients in a similar situation, she could not wait a whole year to divorce. Unfortunately, the new legislation is not due to come into force until next year so a reason, usually ‘behaviour’, will still have to be cited until then.

Another friend, Jane, who divorced ten years ago, sought advice about pre-nuptial agreements (PNAS). Since her divorce, Jane has been seeing Mike, a local builder. Jane received a property and several millions of pounds in capital following her divorce. Mike is also divorced but has no capital. Jane and Mike locked down together during Covid and are now planning to marry, and Jane sought advice on whether to seek a PNA with Mike and how she should raise the issue with him. 

My experience led me to advise Jane that she should seek an agreement to protect her assets. PNAs are not legally binding in England but over the past ten years have been increasingly treated as highly persuasive by the English Courts when a marriage breaks down. I appreciate that they may not be very romantic but, as I explained to Jane, if drawn up properly, they offer protection if the marriage fails. 
I suggested that Jane raise the subject with Mike while talk of marriage is in its infancy. Delay may not only make it harder to tackle the subject but might also undermine its value because an effective PNA must be signed at least a month before the wedding. 

Covid-19 has had a positive effect on the efficiency of the administration of the family justice system, which has been compelled to modernise through the enforced use of technology and new ways of working. Unlike in the past when the vast majority of court business took place with lawyers and clients present, most court hearings today take place by video or telephone link. The courts’ old reliance on paper administration has also given way to online systems which herald a new, more efficient and economic service for those who use them. 

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Tracey Rodford is a Partner located in Londonin our Family department

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