Equal Marriage, Equal Divorce?

On 23rd September 2015, The States voted to legislate to enable same-sex marriage by January 2017 at the latest. However, The States has used the opportunity of extending marriage to include same-sex couples to also consider the issues around divorce and the dissolution of marriage (both heterosexual and same-sex) generally.

 

Analysis

An interesting issue on which same-sex marriage and heterosexual marriage potentially clash concerns adultery. Adultery is grounds on which one can divorce. In law, adultery is defined as a sexual relationship between a man and a woman. If one party to a marriage were to form a sexual relationship with another person of the same sex, the other party would not be able to rely on the grounds of adultery. If adultery is to survive as grounds for divorce in the future, it will either have to be redefined to be gender-neutral or will simply not be available if a spouse has engaged in a sexual relationship with persons of their own sex, which potentially limits this to heterosexual couples. Other, more gender- neutral grounds for divorce may still be available, such as separation or unreasonable behaviour, assuming these grounds will survive The States’ reforms.

If adultery is to remain as it is currently defined, does that lead to two systems of divorce running in parallel; one for same-sex marriages and one for heterosexual couples? How easily does a separate but otherwise equal system for the ending of a marriage sit with those who have campaigned for equality in marriage? Does a separate basis for divorce make same-sex and heterosexual marriage inherently different or unequal?

This is an issue The States will have to grapple with. The difficulty with including adultery as grounds for divorce between same-sex spouses revolves around the definition of adultery, which historically has been confined, like marriage itself, to heterosexual relationships.

A further option would be for there to be different grounds for divorce dependent on your sexual orientation, and a third possibility is to amend the current grounds for divorce. Equalising the situation could be achieved in several ways. The first would be to abolish adultery as grounds for divorce altogether, whether same-sex or heterosexual. Another option might be to redefine adultery to mean ‘sexual infidelity’. If this is to happen, The States will have to decide what sexual infidelity amounts to. A third option might be to do away with the current grounds for divorce altogether and move to a no-fault system where no blame would be attributed to anyone when seeking a divorce.

A no-fault system of divorce, it is hoped, could take some of the stress and animosity out of the current divorce system, which would enable couples to deal with financial issues and questions surrounding their children in a more conciliatory fashion.

There are some who take the view that whether or not the divorce process is ‘fault-based’, it is nevertheless inevitable that arguments about money and children will continue because the breakdown of any relationship is stressful and difficult and these are often issues that are very important to people coming out of a relationship. Divorce can often be a relatively calm and stress-free process until issues surrounding the finances and children arise. While a no-fault system of divorce might avoid the need for one spouse to formally assign blame to the other for the breakdown of a marriage, the factors that will prompt spouses to take the serious step of a divorce will inevitably still exist. It is unlikely that even a no-fault divorce will be a bed of roses.

Another of the issues, approved in principle but the detail of which is yet to be debated, is a legal requirement that divorcing couples access and use mediation services, subject to safeguards (e.g. in cases of domestic violence) and Human Rights considerations, prior to divorce proceedings being issued. It is hoped that the use of mediation services will either assist couples in reconciling their differences, if that is an option, or enable them to settle their finances or any issues regarding childcare outside of court, where it is thought that unless couples consider the use of collaborative lawyers, matters can easily become polarised and fraught. This clearly benefits neither party, particularly not the children, and can be positively harmful.

As a family lawyer, I am concerned about the effectively mandatory requirement for divorcing spouses to use a mediation service. While mediation should always be encouraged, to say to someone “you cannot get divorced unless…” seems wrong. During the initial stages of many separations, matters are very emotional and can be volatile. Forcing someone, who may have had no idea their spouse wanted to end their marriage, to attend mediation is unlikely to be of great assistance to them. There is the risk that the mediation becomes, or is perceived, as a ‘hoop’ through which parties must jump rather than a helpful tool in the resolution of family disputes. The reality is that many divorce cases settle prior to reaching a final hearing as negotiations take place between lawyers. Those soluble cases that can be settled often do, and those insoluble cases that will not settle will inevitably proceed to a hearing.

In an initial meeting with a client, I always discuss all the available options that seem appropriate including mediation, collaborative dispute resolution, arbitration and the traditional court process. This ensures my clients are able to make the right decision for them. If the traditional court route is preferred, unless there is an urgent need to issue proceedings immediately, the other party is notified in advance and an attempt is made to settle financial and matters relating to children without recourse to the court process. It is only if matters cannot be settled that the court process is used, and it could be said that those divorcing couples who are capable of dealing with matters in a conciliatory manner already do so.

There may be an argument that those who are in receipt of legal aid certificates should have to attend mediation prior to a certificate being granted. This was the system in place in the UK prior to the removal of legal aid from family proceedings, a regrettable decision, save in very limited circumstances.

A relevant practical issue to the widespread deployment of mediation in family cases is the number of practising family mediators in Jersey, of which there are currently only two of which I am aware.

An additional issue raised by The States in consideration of divorce and dissolution of marriage generally, is whether matrimonial law, as it applies to financial awards made upon divorce, needs to be amended to include certain presumptions regarding the divorcing spouses’ finances; namely whether assets (including pensions) will be divided equally on divorce, and pre-acquired assets, inheritances and gifts, stay separate once the parties’ needs are met. These presumptions would be subject to the Court’s discretion. There has to be a concern that these proposed presumptions may be misunderstood by those who may not see how they work together, and how they are subject to the Court’s discretion. For instance, someone who has been married for four years may think they are now entitled to 50% of the assets and will go into divorce proceedings having this as a benchmark or expectation, causing difficulties in sensibly settling the dispute rather than understanding the presumption concerning assets acquired prior to the marriage. Lawyers are currently able to advise on the whole picture to ensure that clients understand this, and how the court will look at matters. If people see the presumptions and decide to take no legal advice, confident that they will be given half, it would be to the detriment of all.

One can see scope for legal argument as to how the presumption has been applied by the judge hearing the matter in terms of whether or not the court’s discretion has gone too far. In setting these presumptions, is The States going to fetter the ability of the court to look at financial matters and make an order appropriate in the circumstances? One of the presumptions being discussed involves pension sharing, which is currently not possible under Jersey Law. Presumably this will have to be subject to detailed debate and analysis by The States before any presumption is included in the final draft of the legislation.

Conclusions

The States’ decision to introduce same-sex marriage is a very important one that will necessarily have an impact on divorce law generally, well beyond same-sex spouses. Even the title of The States paper, focussing as it does on same- sex marriage, does not suggest that major recommendations in relation to divorce generally are contained within it. Many people, including family lawyers, believe that Jersey’s current matrimonial law is overdue an update, however, there is a danger in introducing measures with such wide-ranging ramifications on which there has been little or no proper public consultation.


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