Is reform of our divorce law long overdue? Is no fault divorce the answer?
No fault divorce and divorce reform are terms that are increasingly being seen in the press. However, the calls for reform are not new. Changes to the law were proposed as early as 1996 but in recent years, the issue has again gained momentum and has widespread public support.
So why does all of this matter?
It is important to first explain the current law on divorce. The main piece of legislation dealing with divorce is the Matrimonial Clause Act 1973. Having been introduced in the 70's there are questions about its application in today's society.
In order to obtain a divorce you need to prove that the marriage has been broken down irretrievably. This can be proven by relying upon one or more of the following facts:
- Unreasonable behaviour
- Desertion for 2 years
- 2 years separation with consent
- 5 years separation
As you will see, three of the facts are based on a period of separation. If this does not apply to your circumstances you must rely upon either adultery or unreasonable behaviour. Unreasonable behaviour is the ground that is most commonly cited on divorce. Due to the very nature of these facts, relying upon them involves apportioning blame to the other party. Often some people will want or need to do this but it can lead to animosity and difficulties in reaching a solution regarding finances and children. Often relationships are far more complex than simply apportioning blame but such details are superfluous in the current process.
Not only can this exercise heighten emotions but it is in direct conflict with other principles in family law, namely the encouragement of dispute resolution. This is a process whereby a couple are encouraged to discuss matters without court involvement. So on the one hand you have couples being encouraged to talk to each other to find a way forward and on the other they cannot procced with an immediate divorce without apportioning some sort of blame.
One of the most persuasive arguments for reform is the recent decision in the case of Tini Owens which was covered by our last update. In this case Mrs Owens was refused a divorce because as the actions complained of were "exaggerated" and "minor altercations of a kind to be expected in marriage". Surely it cannot be correct to force someone to stay in a marriage they do not want to be in?
However, there are those who oppose the introduction of no-fault divorce law. The opposition largely comes from traditionalist and religious groups who believe that no-fault divorce could make obtaining a divorce easier and negatively affect the sanctity of marriage. It could also reduce the parties' willingness to try and save their marriage and increase the rates of divorce.
What can be done about it?
Over the last decade there has been numerous calls to reform our divorce law. In 1996, the Family Law Act provided for no-fault divorces in England and Wales but due to the change in government and after consultation, the changes were dropped. In October 2015, Richard Bacon MP put forward a private members bill proposing a no-fault divorce with a year's cooling off period. It failed to get a second reading. The issue has again gained momentum.
Although there are different ideas as to how reform should look, the one factor that is consistent throughout is the concept that a couple should be able to obtain a divorce without having to apportion blame or provide evidence.
What would a no-fault divorce system look like?
This is still up for debate. It may be that the system is based on time or there could be a system of unilateral divorce on demand. Resolution, a body of family lawyers who are committed to a non-confrontational approach and constructive resolution of disputes, have proposed a new divorce procedure whereby one or both parties can give notice that the marriage has broken down irretrievably. If after a period of 6 months, the partners still wish to proceed with the divorce, the divorce can proceed and be finalised.
It is interesting that other countries such as America, Australia, the Netherlands and largely Catholic Spain allow couples to divorce without apportioning blame and it could be that one of these systems are adopted.
Is it time for no fault divorce?
Would no fault divorce reduce bitterness between the parties meaning more amicable settlements could be reached between the parties? Or would it undermine the institution of marriage as it could be perceived as easier to get a divorce?
The formal position by the government is that any proposals to remove fault from the existing legislation will have to be considered in more detail as part of its general consideration of family reform....So watch this space!
To find out more or discuss your individual requirements in further detail, our specialist Family Law Solicitors can help. Our advice is bespoke, confidential and totally designed around you, helping you come to the best conclusion for both you and your family.