Irreconcilably different?

This article was first published in Solicitors Journal on 5 October 2016 and is reproduced by kind permission.

A legal system that embraced both English and Californian law would benefit separating couples and their families, suggests Pippa Allsop.

As the shock ending of ‘Brangelina’ reverberates through media headlines, it will inevitably (and understandably) be the salacious details of the break up that are most eagerly awaited to be devoured by a hungry public. However, when I was getting my own fix of the latest gossip, there was something about the terminology used in the reporting which shifted my focus towards the legal aspects of this unhappy story.

Despite previous legislative attempts, English law has not yet embraced the concept of no-fault divorce. This is largely due to criticisms and fears its introduction would weaken the sacrosanct principles of marriage or possibly even encourage people to divorce. I have often commented that I don’t believe it is the role of the legal system to either encourage people into marriage or to persuade them to stay in unhappy relationships. I also don’t believe that setting couples against each other from the outset of relationship breakdown is a particularly useful approach.

Couples divorcing in England are faced with the option of waiting a minimum of two years before commencing divorce proceedings, or relying on the facts of adultery or unreasonable behaviour. Put simply, forcing one party to a divorce to cite the reasons they don’t want to be with the other at the beginning of the process is hardly conducive to promoting an amicable parting of ways. Instead, it increases the potential for arguments about ancillary issues, like arrangements for children and finances.

Conversely, because California has chosen to embrace the no-fault approach, Angelina Jolie has been able to cite ‘irreconcilable differences’ as the basis for initiating divorce proceedings. Although this hasn’t prevented rampant speculation about what those differences may be – thanks to the high profile of both spouses – that is something which the ‘average Californian Joe’ would not be subjected to.

Interestingly though, the most repeated titbit of this celebrity divorce is that Angelina is also seeking ‘physical custody’ of the parties’ six children. Again, the position is very different to that under English law, although, in this instance, for the better. While still widely used by many, the concepts of ‘custody’ and ‘access’ are no longer used. Replaced initially by orders for ‘residence’ and ‘contact’ and now superseded altogether by child arrangements orders, the language used in children proceedings following a relationship breakdown has shifted, but improved.

Though the legal position and practical outcome remain essentially unchanged, this shift in terminology reflects the principle which underpins English family law – the best interests of any children of the family are paramount. Altering the jargon which is used also seeks to serve another purpose, namely to remove any notion of ownership of a child and reducing the adversarial connotation where one parent ‘wins’ custody and the other is ‘allowed’ access.

Seemingly, California has embraced one conciliatory legal approach but not another – and we have done precisely the same. The reasons behind both dichotomies are deep-rooted and interesting, but ultimately too detailed to explore in further depth here. I for one would welcome a legal system which embraced both, as I am positive that all families going through a divorce would benefit exponentially.

For more information please contact Pippa Allsop in the Family team.