No-fault divorce law offers chance to put focus on families
Legislation striking out blame in divorce proceedings offers an “awesome opportunity” to introduce mediation between separating couples to reduce trauma for their children, the island’s legal fraternity has been told.
Puisne Judge Nicole Stoneham, who has served as the Supreme Court’s head divorce judge since her appointment in 2016, addressed a seminar of the judiciary last Friday on the Matrimonial Causes (Faultless Divorce) Amendment Act passed by Parliament earlier this year.
The legislation will come into force once a commencement order is issued by Kathy Lynn Simmons, the Attorney-General.
Mrs Justice Stoneham said the start of the new divorce system was awaiting “procedural matters such as rules in consideration of administrative matters to be put in place”.
The judge, previously a magistrate in the family court, is also chairwoman of the family court panel.
“If we are moving towards reducing trauma, one possibility could be the establishment of some type of practice ensuring that parties understand the consequences of divorce,” she said.
“It will be an awesome opportunity to offer and/or mandate mediation.”
She said such a move would allow “an opportunity to explore minimising the impact of the trauma on the children, and even to provide services to support those marriages which are capable of possibly being saved”.
Mrs Justice Stoneham likened the three-month minimum between applying for a divorce and the granting of a divorce order to a “cooling-off period” that could defuse an inherently painful event.
“These are things that require consultation with the Government.
“I encourage you all to pursue these possibilities, to ensure that our families, our children, are secure – notwithstanding the breakdown of the marriage of their parents.”
She highlighted that the legislation was “the first part of a raft of reforms with the aim of modernising matrimonial law in Bermuda”.
She noted the original legislation, dating back to 1974, required divorcing partners to assign blame from adultery to threatening behaviour.
“Does it really matter why?” she asked. “Particularly when one party or both have concluded that the marriage is over? Think about it – you are unhappy for whatever reason, or perhaps simply the two of you are going in different directions.”
She recalled that early in her career “the divorce court was in competition with General Hospital”, the TV soap opera.
“It was conducted on Friday afternoon up on the Hill at Supreme Court, and many people who were able to get away from work would come and sit in the gallery to get the latest.
“If that wasn’t enough, on Monday morning everyone was checking the newspapers to see who got divorced.”
Mrs Justice Stoneham said a law reform community had been tasked in 2008 to look at updating the process and had received a letter from a child, who told them: “Knowing my parents would not be together was heartbreaking.
“Being 18 now, I know for a fact that it would have been easier on my sister and me if my parents could have settled without the hostile battle of the court atmosphere.”
Along with setting a no-fault procedure, the amendments change the terminology of divorce.
The move also cuts red tape, with the current stamping fees for legal documents, which run from $300 to $375, dropping to $150 for the process from the application through to the divorce order – once the amendments come into force.
Mrs Justice Stoneham told the gathering at the Hamilton Princess Hotel that the island’s family and matrimonial courts “ought to be the most important court in this country”.
She pointed out that over the past 40 years, substantial legislative focus had been given to the island’s economy and the creation of its international business system.
“I don’t mean to take away from the value,” she said. “But it’s been 40-something years, and we need to have a concentrated focus on the family court.
“I encourage Bermudians to pause and consider whether this is an appropriate time, given the circumstances of the economy and our social circumstances, to give some proper focus to the family justice system, so that our children that have been traumatised, that have been abused, get the attention they require, so that moving forward we are in a better space as a country and as a people.”