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No-fault divorce law needs amendments, lawyers say

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Georgia Marshall (Photograph by Owain Johnston-Barnes)

Legislation streamlining divorce procedures has been praised by lawyers, one year on, for cutting animosity out of the separation process — but it is still a time-consuming process and improvements have been proposed to the Chief Justice.

The no-fault divorce process, implemented in March 2023, marks a “missed opportunity” to simplify ending a marriage, two lawyers told The Royal Gazette.

The Matrimonial Causes (Faultless Divorce) Amendment Act, which became operative just over a year ago was the first of several changes to modernise matrimonial law.

The Act removed the requirement for couples to prove fault in divorce cases.

It allows both sides the option to apply for divorce and give a statement of irretrievable breakdown.

Georgia Marshall, a lawyer with Marshall Diel and Myers, said the legislation was a step in the right direction for reducing friction between divorcing parties.

Adam Richards, a barrister at Richards Ltd, said the no-fault provisions had been welcomed by family law attorneys and clients alike.

Adam Richards, a barrister at Richards Ltd (Photograph supplied)

Ms Marshall said: “Before the amendments, it wasn’t good enough for a petitioner to simply say their marriage is finished and they wanted a divorce.

“They had to say their marriage is finished because of something and there was a specific list of facts you could rely on.

“You had to go into the attic, go through the cobwebs and dredge out all of the faults of your spouse and lay them bare for a judge to determine if the reasons were sufficient or not.

“Now, all you have to do is say your marriage is over. You don’t have to prove to the satisfaction of a judge that your marriage is over.”

However, Ms Marshall said that the new process included time frames that caused divorces to take much longer than before.

“Previously, you would file your divorce and if everything proceeded in an uncontested basis, you would get your divorce in between six to eight weeks and the final decree of divorce would come six weeks thereafter.

“Now, there are all of these periods of cool-off. You file your divorce and upon filing it, you have to wait 12 weeks before you take the next step.

“After the 12 weeks, you have to file another document that says you really do want to get the divorce and asking for the divorce to be listed.

“Then you get listed in the next month and you have an interim hearing when the conditional order for divorce would be made. After that, to get your final order, you have to wait another eight weeks.”

Ms Marshall said that, even when smooth, the process now took more than 20 weeks, and the amendments introduced a path for parties to “kibosh” the process.

She noted that previously, one ground for divorce was that the parties had been separated for five years. In such cases, the spouse could put in an application asking for the divorce not to be finalised until financial claims were heard.

Ms Marshall said such measures were important in cases where one spouse could be left without health insurance by the finalised divorce.

Because of the move to no-fault divorces, she said that parties could now make such submissions in any divorce case.

She added: “What I am seeing is that attorneys are using that procedural aspect of the rules in order to apply pressure on the other side for a financial settlement.

“I see that as problematic and something I hope the Chief Justice will review.”

Ms Marshall said that proposed amendments had been distributed to some practitioners working in the field for feedback and she hoped for concerns would be addressed.

“That 20 weeks is just too long for people who are just done with their marriage and want to move on,” she said.

Mr Richards said the new process helped to reduce hostility from the outset, providing more opportunity to resolve issues around children or the division of financial assets.

However, he too agreed that there was a missed opportunity with the legislation.

“The intention of the legislation was to make the whole process simpler. But the reality is that there are additional steps required to getting a divorce and the timelines are longer.

“A divorce now takes no less than five months to complete and can be much longer if parties cannot resolve their finances, when before parties could be divorced within approximately three months under the old regime.

“The Bermuda Judiciary report confirms that only 41 divorces were completed in 2023 compared with 122 in the previous year, which is likely a reflection of people waiting for the new legislation to come into force and the time it now takes to obtain a final order.”

Mr Richards said the new rules did not allow for a joint application for a divorce, as found in the UK.

“This would have allowed a joint framework for parties in Bermuda to work together collaboratively to resolve their affairs post-divorce.”

He said several clients had held off getting divorced in the hope of finishing the process themselves under the new rules.

However, they ultimately had to take on lawyers after finding the procedure “far too complicated”.

Mr Richards said he hoped the negligible increase in people acting for themselves last year would lead to a streamlining allowing parties to apply for divorce in person.

He added: “These discussions are ongoing between the Family Bar and the court.

“Finally, the number of divorces issued last year was consistent with 2022 and so there is no evidence to suggest the new rules had any impact on the number of people divorcing.”

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Published April 22, 2024 at 7:58 am (Updated April 22, 2024 at 8:37 am)

No-fault divorce law needs amendments, lawyers say

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