Messy Divorce Laws Create Problems

Surely it is only a matter of time before politicians come to their senses and finally implement no-fault divorces in the UK. This is one area where we are dragging behind other countries, and frankly it is an embarrassment to our legal system.

Judges and lawyers are well aware of this problem but our hands are tied until legislators get around to actually revising the laws so that we get a fairer system. While we are waiting for that day, we must act within the bounds of the written law, whether we agree with it or not.

Here at Hylton-Potts, we are really pleased that despite the many potential legal problems that can arise, we have always been able to find some way to help our clients when they come to us for assistance with divorce, no matter what the circumstances have been.

Even so, the laws are quite a lot less straightforward than they may at first appear to be, and that can require a lot more strategic thinking and legal finesse than you may expect. If you are trying to handle divorce without legal assistance, it can unfortunately become a “hit and miss game”. You may not necessarily get everything you want, and in some extreme cases you may even find your divorce petition denied on a technicality, no matter how reluctant the judge is to actually do that.

Some of those technicalities can be really surprising, particularly in light of the fact that we are now supposed to have a newly enlightened, tolerant, and free society. But perhaps for the government those are just abstract concepts, mere words designed to create the illusion of caring about social issues so that voters with a strong sense of justice won’t turn against them.

No-fault Divorce? Nobody to blame… but the legal system?

Obviously the biggest problem of not having no-fault divorce is that it means somebody has to accept blame. This is hardly fair, especially in those situations where it is simply the case that two people realise that they married in haste, and perhaps foolishly. In those situations it is a mutual agreement between the two parties that they would be better off by not remaining married, but the law as it stands now binds them together unless one of them admits to wrong-doing.

I could start here by pointing out that this is an open invitation to perjury. So in effect the system itself is designed in a way that somebody who is innocent and has done nothing wrong is actually forced to do something wrong in order to become free. Obviously this is terribly ironic, but it is far from funny.

This seems to be rooted in the ancient religious concept of “what God has brought together, let no man put asunder”, but as we all know, few marriages today are inspired by God, and I believe we can see the evidence of that in the way many people tend to treat one another once a marriage begins to break down. There is nothing holy about matrimony in those circumstances!

Well, we all fall in love,

But we disregard the danger,

Though we share so many secrets,

There are some we never tell.

Billy Joel, The Stranger (lyrics)

There can also be cases where we discover that the person we thought we were in love with turns out to be a mirage. Sometimes it is that a person changes over time or becomes corrupted by the circumstances around them, and sometimes there are people who have simply been living a lie for a very long time. It is difficult to describe the feelings of hurt and betrayal that accompany the discovery of long-term deception, as this is something you would have to experience for yourself in order to truly understand it. Of course, I sincerely hope you never do have to experience such feelings.

Divorce on the grounds of Homosexual Adultery?

An example of just such a situation – and the legal problems that can be associated – was recently brought to light by a BBC story earlier this month which discussed the matter of a woman who discovered that her husband had been involved in a series of homosexual affairs, but was unable to obtain a divorce on the grounds of adultery because homosexual affairs do not fall within the definition of adultery under UK law.

It is not difficult to see why the law is wrong in this case. To you, me, and I guess everyone, it is obvious that the correct meaning of adultery is having any kind of consensual sexual encounter with a third party from outside of the marriage without the informed consent of the affected spouse.

To any reasonable person, it would not matter what form the sexual encounter took or what genders were involved. Just the mere fact that it had happened should be sufficient to demonstrate that there has been a betrayal of trust of a magnitude large enough that it would be difficult for the relationship to recover from.

As we all know, however, the law is not always reasonable. The present law, created by people from a more prudish era, defines adultery as vaginal intercourse with somebody who is not the spouse of the guilty party.

That definition can be hugely problematic. Consider these scenarios:

  • A husband could accuse his wife of adultery if she had been raped by another man, and the law, as it currently stands, would agree that she was guilty. This is the kind of thing the media makes a meal of when reporting on human rights issues in Africa and the Middle East, yet it is still part of our own domestic law. Where is the outcry?
  • A woman could engage in any number of lesbian encounters, and her husband (whether male or female) could not legally accuse her of adultery. In fact, if the husband did publicly accuse her of adultery for this, it could be considered slander and she could sue!
  • A man could engage in any number of male homosexual encounters and the same situation would apply.
  • A man or woman could have a long-term romantic and sexual affair with another person and it would not be considered adultery so long as they never indulged in vaginal sex. There are many other ways they could have sex, but none of them would constitute valid grounds for adultery.

The very big problem with the last point is how do you actually go about proving that vaginal sex took place? Without a confession from either of the people involved, it would be very difficult to prove.

I don’t think there is any private investigator on the planet willing to get that up close and personal in collecting evidence, so even though perhaps you could prove that two people were having sex together in a room, you’d then have to establish exactly who did what, and to whom!

English Law Counterproductive to Gay Divorce

For gay couples especially, these laws could be frustrating, and I’m going to go out on a limb and declare that the laws are discriminatory in their definition of adultery as being an act taking place between a man and a woman and solely involving vaginal intercourse.

Fortunately, it is not all bad news. There are ways of getting around the limitations written into the law by having a sufficiently thorough understanding of the law to know exactly which points to proceed on, to obtain the most fair outcome. This is where a legal consultant such as Hylton-Potts can be of service to you.

If you are anticipating the need for a divorce, we can help. Simply call Hylton-Potts Legal Consultants on 020 7381 8111 or send an email to [email protected] for a free confidential discussion of your situation.

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