Divorce - Taking the sting out of separation

Posted on June 09, 2020

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Taking the Sting out of Separation

The Divorce, Dissolution and Separation (Isle of Man) Bill 2020 passed its second reading in the House of Keys on 15 May 2020. The Bill proposes to introduce no fault divorces on the Isle of Man; a huge departure to the current law.

The Current Situation

In the Isle of Man it is normal for a party wishing to divorce their spouse to take steps to dissolve the marriage before the financial aspects of the marriage are determined. To begin the process of dissolving the marriage they must prove to the Court that their relationship has irretrievable broken down by relying on one of the following five facts:-

  1. The adultery of the other party;
  2. The behaviour of the other party being such to make it unreasonable to expect the petitioning party to continue to live with them;
  3. Two years separation with the consent of both parties;
  4. Five years separation without the consent of the other party;
  5. The other party deserting the petitioning party without good reason for a period of at least two years.

The only routes currently available for a party wishing to divorce their spouse are therefore to either prove adultery or the offending behaviour of their partner. The latter option tends to be the most common route for a quick divorce, but it has the disadvantage of the petitioning party needing to list in painful detail the perceived faults of their spouse. This can often cause a great deal of upset to the spouse when they receive the application. It can also mean that the proceedings get off to a bad start, which can further entrench the parties and makes settling the financial aspects of the divorce more difficult. It can also have a negative effect on the children of the marriage who may pick up on the hostility that often develops between the parties in fault based divorces.

In practice, many family advocates seek to agree the terms of a divorce application in the most general and gentle terms possible to avoid the pitfalls of starting a ‘blame game’, however even this approach contains some risk as if the spouse chooses to defend the divorce, the petitioning party may be left in a situation in which they have to prove that the examples of behaviour occurred and that they are sufficient to satisfy the statutory test. An example of such a case is the UK Supreme Court case of Owens v Owens [2018] UKSC 41 which has led to proposals to introduce no fault divorce in that jurisdiction.

Alternatively, some parties seek to bypass the need to dissolve the marriage on a finding of fault by opting to rely on the fact of two years separation with consent. In such cases it is prudent to execute a separation agreement to settle all financial claims between the parties as far as possible. Once two years of separation has passed the parties may apply to court to dissolve the marriage. The obvious disadvantage to this approach is that the parties shall remain for a period of at least two years following the breakdown of their marriage.

The Proposed Solution

The Divorce, Dissolution and Separation (Isle of Man) Bill 2020 proposes to remove the requirement to rely one of the five facts above to dissolve the marriage. Instead, a party can apply to the court for a divorce order supported with a statement by the party (or parties if it is a joint application) that the marriage has irretrievably broken down. Following this, it is proposed that the parties wait for period of 20 weeks before the applicant(s) confirm to the court that they wish to continue. This period shall give the couple a chance to consider their situation and see if reconciliation is possible before taking the next step to dissolve the marriage, however it can be waived if there is good reason to.

It is important to note that the Bill does not alter the process in which the marital assets will be divided following the dissolution of the marriage. This is still governed by the principles contained in the Matrimonial Proceedings Act 2003 and relevant case law.

Will the new law remove the need for lawyers to become involved?

Whilst it is hoped that the proposed changes will mean that less time (and therefore money) is spent on negotiating or proving fault during the divorce process, it is still prudent to obtain legal advice especially in sizable or complicated cases. This will help ensure that the matrimonial assets are divided fairly between the couple and ensure that the correct process is followed.

Should you wait for The Divorce, Dissolution and Separation (Isle of Man) Bill 2020 to become law?

If you feel that your relationship to your spouse has irretrievably broken down and guidance has been sought, we would always suggest that you obtain legal advice as soon as possible. There is no definitive date on when no fault divorce shall be introduced into law on the Isle of Man and it may be more prudent to settle the financial claims of the marriage sooner rather than later either via a court order or through a separation agreement. Failure to address the finances can have unintended consequences especially if one of the parties passes away before the finances are dealt with. In addition, the proposed law may yet change.

You will need to also consider the potential impact on the children and what arrangements should be put in place to ensure that they see both their parents in a safe and happy environment.

Michael Mudge is an associate advocate at M&P Legal. Specific advice should be sought on particular cases.

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