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Family Law

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Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

13 JUL 2009

Conservatives call for compulsory pre-divorce cooling off period

A compulsory three-month "cooling off" period in which estranged couples must find out about the implications of a divorce is recommended in a new report on family law reform published today by Centre for Social Justice, the think- tank set up by the former Conservative leader Iain Duncan Smith.

The compulsory delay before divorce proceedings could begin would be used to encourage both parties to reflect on their marriage and to gather information about the scope for reconciliation and key issues such as the financial impact of a split.

The report, Every Family Matters, is likely to have bearing on David Cameron's social policy-making.

Another key conclusion from the report is a rejection of moves to give couples living together the same legal rights as those who are married.

The authors, a team of lawyers led by David Hodson of London-based The International Family Law Group, also call on the Government to give "strong encouragement" to marriage preparation classes, although they fall short of insisting that such advice be compulsory.

Mr Duncan Smith said: "Instead of giving cohabitees similar legal rights as married couples, which would only undermine marriage, we have to do more to warn people that they can only secure the legal protection of marriage by getting married.

"The cooling off period and the requirement for estranged couples to receive information about the implications of divorce will help to save some worthwhile marriages. This is based on the highly successful Australian system which is accepted by most as a genuine aid to family stability."

On pre-divorce counselling, the report says: "Before any proceedings in family law can be commenced, with certain exceptions (such as domestic violence), the applicant must have obtained, received, attended at or in other ways have had the opportunity to consider certain information.

"This would include reconciliation opportunities and resources, alternative dispute resolution, impact on children, costs and court procedures?A certificate of attendance would be required before proceedings could be issued.

"We propose a three-month period of reflection and consideration before the divorce petition goes ahead.

"This is a direct encouragement to the obtaining of this information during the three-month period to reflect on the relationship, the impact of any divorce... and any prospects of reconciliation."

The report warns that lax divorce laws and related procedures are "causally implicated in high rates of family breakdown."

The report makes the case for the retention of a fault provision during divorce proceedings "While in very many marriage breakdowns there is fault on both sides, there are some where fault lies wholly or very substantially with one spouse alone and it would be wrong in these cases for there not to be any fault basis." It rejects the arguments from the Law Commission for the elimination of fault from divorce proceedings.

The report rejects calls to give cohabitees similar legal rights as married couples because such a step would have an adverse effect on the distinctive status of marriage. Instead, a greater public education effort should be made to dispel the widespread but mistaken belief that the law recognises cohabitees as "common law spouses".

Polling carried out by YouGov for the report showed that 57 per cent of people believed the law should promote marriage in preference to other kinds of family structure, such as cohabitation, with27 per cent disagreeing. Fifty eight per cent of people thought that giving cohabitees similar legal rights as the married would undermine marriage and make people less likely to wed.

The report backs a tax break to promote marriage and finds that this is supported by 85 per cent of people, according to the poll.

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