The Adviser: Divorcing the issue

Monday 03 June 2019

With the number of men and women getting married falling to an all-time low in 2015, the way in which we commit to one another is changing – and so is the way we divorce one another.

‘No-fault divorce’ has been on the legal horizon for decades, but the ability to separate from one’s spouse without accusing them of adultery or abuse is yet to be enshrined in law.

In his monthly column for Express, seasoned lawyer Advocate Olaf Blakeley thinks the time is nigh to finally put an end to the ‘blame game’ of divorce and that Jersey should grasp the mettle and take a lead on the long-awaited legal reform…

“I often champion in my articles the need for change to some of our laws because I consider many of them out of date and inappropriate. On many occasions I have expressed my views about giving anonymity to defendants in criminal trials until guilty verdicts are returned. 

Pictured: Advocate Blakeley says there are several areas of law which he considers "out of date and inappropriate."

A few months ago, there was a criminal trial in which a person was accused of sexual assault but was acquitted by a jury. But of course, because of the current legislation, that person was named and shamed. Yet another person – I think – that should have been protected by legislation.  

England and Wales are no better when it comes to updating legislation: law reform there can also take an age. However, it could be argued that law reform in Jersey is far easier than in English Parliament and so therefore we should be more effective and efficient. 

In short, just because the UK often drags its feet, that does not provide an excuse for us. We should be at the forefront of legal change. 

Last month, the UK stole a march on us in respect of introducing ‘no-fault divorce’. It did, however, take an eternity for this to come to pass, because efforts were made in the 1990’s to bring about this change but to no avail. It’s the biggest change in divorce law for 50 years. 

Jersey now needs to follow suit and introduce the no-fault divorce as a matter of priority. This won’t come as a shock to the legislature here because it was included as a suggested reform in a consultation paper ‘Divorce Reform’ way back in December 2014. 

Pictured: The Advocate says the new legislation will signal the biggest change to divorce in 50 years.

The fact that so many changes take quite so long to come into effect here in the island is a real frustration to me.  

What is no-fault divorce? In simple terms, it allows a party to a marriage to petition for divorce simply because they wish to end the marriage. 

As matters stand in Jersey, unless you petition on the grounds of adultery or unreasonable behaviour, you will have to wait a minimum of 12 months but it could be as long as 24 months. You don’t have to wait a specific period to marry but, once you say “I do,” you’re locked in even if both parties decide it’s no longer for them. 

The changes in the UK finally came about after the Supreme Court rejected a woman’s appeal for divorce in a case in which her husband refused to provide consent to it. 

The couple had been married for 40 years but, applying the law, divorce was not possible. Baroness Hale, the UK’s most senior judge, described the current law as “unjust.”  

I have no doubt that when the legislation was drafted it was suited to the times. However, the world evolves and the views of people change and the law has to try and keep pace. 

By this, I mean the legislation has to change in tandem with current views, not 20 or 30 years after. Tardy amendment probably results in unnecessary hardship and unfairness for thousands of people as well as being just behind the next evolution.

Pictured: Advocate Blakeley says it's time to end the blame game of divorce.

We know all the features of marriage are changing. In 2015, marriages between men and women in England and Wales fell to an all-time low. 

The record low follows a gradual decrease since the 70’s with many experts saying that the decrease was probably an indication of lower societal expectations that people should marry. The change in society’s views on marriage is probably reflected in views concerning divorce.  

Why should be people be forced to remain in marriage? In the UK, you can file for divorce online and this is getting more and more popular. Last year, 13 people filed internet petitions for divorce on Christmas Day, with 26 on Christmas Eve and 77 on New Year’s Day.

Of course, there will be people who perhaps think that making divorce so easy is not a good thing. 

They may believe that forcing people to stay in wedlock may assist them in working out differences or simply may have the effect of changing their minds. Maybe. But that has to be weighed up against the stress and pressure that occurs during the ‘waiting period’ for divorce and very importantly, the sometimes very unpleasant impact upon children whose parents want to move on from one another.  

In conclusion, I consider public opinion would dictate that no-fault divorce should now operate in Jersey and our legislature now needs to get a move on to help Jersey keep up-to-date. We can leave actually being ahead for another time."