Family Law: Alternatives to Divorce - Essay Example

You're 2 December 2005 Family Law: Alternatives to Divorce Marriage is based on commitment and within the UK it is a highlyvalued relationship between a couple. That is why applying for a divorce is filled with systematic steps and many alternatives in order to try and avoid it altogether. There are many more options available than just giving up on the marriage and petitioning for a divorce. First though, it takes the willingness of both partners to look into these alternatives together. As it is said, marriage is a two way street, not just one. The same literary concept holds true for divorce and separation issues. Since the passing of the Matrimonial clauses of 1969 and 1973, there are specific guidelines that must be irrevocably followed to substantiate a divorce hearing. Furthermore, when petitioning a court for a divorce a person may only utilize one out of five circumstantial reasons into why a divorce must be considered. Below is an outline of the facts that would create a legitimate reason for considering a divorce. 1) The respondents adultery and the petitioner finding it intolerable to live with the respondent, although not necessarily as a result of adultery 2) The respondent behaving in such a way that is unreasonable to expect the petitioner to continue to live with the respondent 1 These two reasons are considered to be quick fix solutions and are not highly accepted in the court system. Furthermore, sometimes these reasons are not valid enough to be granted a divorce but instead an idea is offered to seek counselling or live separate from one another for an unspecified amount of time. If it is found that a couple are still living as husband and wife 6 months after an adulterous affair has been uncovered then, by UK law, their relationship will more than likely not receive a decree of divorce. Other underlying justifications might be found for seeking a divorce as well but they still might be questionable although they will be taken under consideration within the court system. Three more of these explanations are theorized in the following manner. 3) The respondent deserting the petitioner, leaving and living apart, without this being agreement, and throughout the period of living apart, the petitioner being willing for the respondent to return. This desertion has to be for a period of two years at least, prior to presentation to the court 4) Two years separation with the respondents' consent, to which the consent is absolutely vital and may be withdrawn at any time prior to the Grant of Decree of Nisi 5) Five years separation. In this case either of the parties may petition and no no consent is required, however if a decree of divorce were to cause financial hardship or another hardship then the divorce might not be granted2 Even though the rationalization of the stated facts of case 3 through 5 could receive a divorce decree, there is still ample time given to the couple in an attempt to try and reconcile differences and avoid the divorce proceeding entirely. The period of time allowed is normally up to 6 months. Furthermore in the issues of the 4th and 5th statements, a provision can be implemented which would consider a delay in passing a divorce decree absolute in cases where any adverse financial position might occur because of it. Also, with regard to delays in divorce proceedings, and the laws established within the UK for this type of civil affair, in Great Britain there have been numerous revisions to the divorce decree laws which first became effective in 1998. 3 These new regulations lessen the 'no fault' in many divorce cases and also require mediation in order to assist both parties in reaching a decision. It has also been duly recognized that England and Wales, and basically the majority of the European continent have greatly diminished the need for lawyers in the notion of fault, within divorce proceedings. Following the new procedures and protocols after 1998, divorce cases will not take 12 to 18 months to officially decree. The rationalization in behind this lies within the hope that through arbitration and mediational practices plus counselling, reconciliation over the adverse areas can be reached in the relationship. If divorce is still found to be eminent then at least the 'cooling off period' will allow for proper arrangements of child custody and a fair financial agreement between both parties. 4 Sadly, Britain has one of the highest divorce rates within the European World, with one marriage in every two ending in divorce. In order to try and resolve issues in marriages, which often lead to divorce within many matrimonial relationships, within the UK, there are established Guidance Organizations such as, 5 The London Marriage Guidance Council. What this council actually does is listen to couples problems and then it takes on the role of a mediating party rather than a Guidance Counsellor of marriage. 6 "One doesn't tell people what to do or guide them. It is about people working out for themselves what they want and what is going wrong and how they can deal with it". The London Organization claims that their goal is not in saving marriages but rather, helping people sort out what is right for them. Furthermore, marriage counselling has undergone a major overhaul since the 1930's. The titles that use to be associated with organizations affiliated with helping marriages survive are rarely mentioned words any longer. The government of Britain is even working wholeheartedly to try and ease the burden of soaring divorce rates in the country. 7 What Tony Blair's' governments main priorities are, with concern to the divorce crisis is in attempting to make implementations within the many organizations that are supposed to be helping married couples. One specific way in which assistance is being given is in regards to a trust of funds that has been established by parliament in order to provide funding so that substantial resources can be used to inquire as to why the divorce rate in Britain is continuing to escalate. 8 "Couples will be taught how to stay married by having a better idea of what lies ahead for them after they have made their vows". 9 Statistically, 158,000 marriages ended in divorce in 1994, which happens to be the second highest percentage in history, although it is down by 10% from in 1984. Furthermore, according to a panel of divorce experts in England, some marriages that are disintegrating are due to the fact that the wives are jeopardizing their marriages by having affairs. 10 In fact, the possibility exists that if women continue on this adulterous trend then the percentages of adultery being committed in marriages by women might outnumber the men. The theorization that easy access to contraception and a feeling of greater financial independence are the two determining factors in women assuming it won't cause them any hardship to have an affair is not far off from the truth. 11 Investigative services that have been utilized to cite extra marital affairs show that 45% of wives cheat while the other 55% are of men cheating. This signals disaster for many marriages. 12 Women seem to be participating in extramarital affairs basically because they have become bored in their marriage and feel neglected. 13 It has also been discovered that infidelity actually outranks other explanations for couples seeking a divorce. Emotional and physical abuse factors only have a 10% impact on current divorce cases which goes to prove that infidelity is a major issue in relationships. Here say can destroy many marriages but, in order to provide support for the statistics of declining marriages, there are many other worthy publications noting the same factors in the destruction of marriages in the UK. 14 The Birmingham Post documents that there were only 286,000 marriages recorded in 2001, which is a figure lower than any noted since the 1950's. 15 The main reasoning in behind this is due to the issue of so many extramarital affairs, as well as the desire for pre-nuptial agreements due to so many marriages ending. 16 "Perhaps unromantically, pre-nuptial agreements are becoming more popular among couples." Obviously the reason for more of these pre-nubs being requested is directly relative to the divorce rate in the UK. 17 Approximately 160,000 divorces occurred in 2002 which is the largest amount since 1997 and more than 5 times the occurrences in 1961. As was previously stated, there are always alternatives to divorce and these alternate routes are what the UK government would prefer, however, the protocols and legislative laws can not force a couple to stay married. 18 One example of a couple seeking an option to save their marriage instead of opting for a divorce is radio presenter Zoe Ball and DJ, Norman Cook. This marriage goes to show looks can be deceiving as in 1999 they looked extremely happy, but then four years later they are involved in a trial separation to save their marriage. 19 Other stars that have been in similar circumstances are Tom Cruise and Nicole Kidman. They had also appeared very united but then suddenly went their separate ways. Sometimes living apart for awhile can salvage the marriage and sometimes not, it just depends on the couple. 20 Yet, another couple who were having problems in their marriage and chose this alternative route are Jonathan Ross and Jane Goldman. However, their relationship proves that alternate living can benefit trouble in a marriage and in fact make it grow stronger. Their marriage now seems to be more solid than it did before their separation. 21 "Couples can get back to a workable relationship, or even a better one, if they become flexible in the way they interact through the efforts they make during a separation". Also, children provide a better logical way of thinking in resolving difficulties in marriage because the majority of couples want to do what is in the best interest of the children. 22 Joan Burnie, with The Daily Record, illustrates how children do indeed have a major impact within marriages. However, she indicates that reconciliation and remaining together for the sake of the children is not always the best possible outcome. She states, 23 "Marriages do go stale but sensible mature couples accept that the mad passionate times they enjoyed at the beginning are unlikely to be sustained, especially once the babies begin coming along". It would seem Burnie is suggesting that children can either be a positive influence or an adverse one in the deciphering factors of keeping the marriage united. Divorce brings many formidable difficulties as do alternatives to salvage the marriage. 24 In the 2002 addition of The Knight Ridder, one major negative issue is the financial stress that is placed upon couples going through divorce proceedings. 25 "Divorce and the financial upheaval that follows are an unfortunate reality for many couples in their forties." Because divorce often occurs within the middle age years, financial stability often dissolves with the breakdown of the marriage. 26 "Women in particular fall behind in their own savings because they take time off work to look after the children and tend to spend their money on them as well." Some couples seem to survive the financial burden of divorce but this is normally when both have an almost equal amount of income and no children are involved. 27 It has been evidenced that marriages without children do seem to have a lesser financial consequence from divorce than couples with children. The UK Government has been working extremely hard to try and find an alternate solution for financial duress caused by Divorce. 28 Lord Irvine has set out specific proposals in great hopes that ancillary relief can be reached by couples in divorce proceedings. The Lord Chancellor firmly suggests doing away with unnecessary delays so that a proper practice and procedure can take place in the family courts. 29 "The 1996 Family Law Act is designed to promote negotiation and agreement, and to reduce conflict between divorcing people w hen saving their marriage has proved impossible." However, what causes disagreement and spitefulness is when a solution to solve financial matters is posed. 30 This is when it is found to be in both parties interest to let the court take over the management of the case and attempt to come to a solution as quickly as logically possible. 31 The Independent Tribune emphasizes the fact that 40% of marriages that suffer melt down do so because of financial reasons. An issue that is surprising is that a number of spouses keep a secret stash of money just in case their marriage does hit the rocks. 32 "Interestingly 69% of women are likely to keep a secret stash of money, compared to 53% of men. An article by 'The Newsletter' also clarifies the issue of money and associated problems involved in marriages. 33 An estimated 45% of couples claim that finances created the majority of problems in their marriage. 34 Another 37% stated that they believed incompatibility, financially wise is what lead to their marriages break up. Logical reasoning has offered the theorization that those couples with separate bank accounts don't suffer from the financial strife that those who share bank accounts do. 35 46% of couples that have separate accounts substantiate the reason for this simply by claiming that they have different ideas towards spending. 36 Therefore, couples who do this, claim that it totally eliminates any type of adverse conditions and promotes amicability in their marriage with regard to the financial aspects of the relationship. 37 "Our research illustrates that some couples are just not financially compatible. The most important thing is to work out how you will handle each aspect of your finances and then stick to it. Writing a budget can be dull, but it will help you both be clear about how much money you've got and how you will spend it so there won't be any room for arguments later." In Divorce actions, the estimated cost is averaged to be around 13,000 pounds. 38 The Birmingham post shows that 1/3 of couples have had to sell their homes just to be able to financially afford these legal proceedings. Also, because of the emotional strife that divorce brings, an average of 40% of couple's state they would never remarry. 39 Another 28% claimed that trying to adjust to single parenthood proved to be extremely difficult. The multitude of adverse conditions following divorce drove some divorcee's to over indulge in spending, leading to more stressful situations. 40 Couples who seek legal help with divorce run into even more expense, sometimes equalling over 1.668 pounds in fees. 41 Another 51% found expense in having to establish a new living environment, such as a purchase of a new home. These estimates demonstrate how harsh the reality of divorce actually is and why alternatives should be searched for to resolve the problems arising within the marriage. With regard to the reform laws within divorce, in the UK, the Government has stated that the current changes are not up to par in resolving adversities within the theory of saving marriages. 42 Therefore, it is the Governments intention to make a request to Parliament to make adjustments in Part II of the Family Law Act of 1996. Research has shown that many of the implementations that have been done have not met the individual needs of married couples. 43 These changes were noted to be inflexible and in a good percentage of cases, the only person petitioning for divorce attended necessary meetings. 44 Furthermore, the most important areas such as: marriage counselling, conciliatory divorce, and mediation, takes both parties willingness to participate, in order for success in reconciliation to be possible. The Governments plan is to utilize evidence that has been gathered by thorough research, in order to try and provide families with the necessary supportive networks in cases of divorce. Lord Irvine states that, 45 "The Government has taken forward a wide range of measures over the past three years to help families, including establishing the new Children's Fund and the Children and Family Courts Advisory and Support Service, improving maternity and parental leave arrangements, and increasing funding for marriage and relationship support to a total of GBP5 million per annum by 2002-2003." In conclusion, every resolution should be attempted to be made in correcting the problems within marriages. If the assistance that has been discussed is actually utilized then the possibility of reducing the divorce rate stands a higher probability of being corrected. The most important aspect to remember is how valuable the sanctity of marriage is within all countries, and for a country to do everything within its power to find a solution in upholding the vows of marriage between two people. Read More