No Fault Divorce UK - Page 3

This topic provides comprehensive information on the new no-fault system - including its implications for the divorce process, timelines, and how it marks a significant shift in family law, simplifying the process and reducing potential conflict between separating couples.

A Case for No-Fault Divorce
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A Case for No-Fault Divorce

Published on
Kerry Smith
Kerry Smith
Head of Family Law
at K J Smith

When it comes to the law and personal relationships, the UK is a curious mixture of the progressive and the archaic.

On the one hand, the law recognises same-sex unions, on the other the process of ending a marriage through divorce seems to be stuck in the past, specifically the 1970s and the Matrimonial Causes Act 1973.

Irretrievable Breakdown of Marriage in the 21st Century

In England and Wales a divorce can only be granted if it is shown that a marriage has broken down irretrievably and there are only 5 acceptable grounds for making this claim.

Adultery – In legal terms adultery is defined as having a sexual relationship with a member of the opposite sex, same-sex relationships are not recognized in this context.

Also adultery ceases to be recognized as grounds for divorce if the deceived party continues to live with their spouse for 6 months after discovering the affair.

Desertion/Living apart

If a husband and wife live apart for two years and both agree to a divorce

If one party leaves the other for two years and the other party requests a divorce

If a husband and wife live apart for five years and one or the other wants a divorce

Unreasonable Behaviour

One party behaves in such a way that the other cannot reasonably be expected to continue living with them.

De facto No-faults Divorce versus Legally-recognized No-faults Divorce

Looking at the list of reasons given above, it can be seen that currently the only way to be granted a divorce without some element of blame being attached to at least one of the parties is to wait at least two years, which can seem a very long time for couples looking to separate amicably and move on with their lives.

Because of this, Richard Bacon MP attempted to introduce the No-Fault Divorce Bill 2016, but this failed to get past its first commons reading.

Interestingly this appeared to be through lack of time as the second reading was postponed and postponed again, rather than through any strong, entrenched resistance to the idea itself.

There is still strong pressure from the legal community to recognize no-faults divorce, as is already the case in some other countries. In particular Resolution, an association of 6,500 family lawyers and other related professionals are continuing to campaign for a change in the law.

They argue that permitting no-faults divorce would not only free up court time, but also have a far lower impact on children.

Moving from the Blame Game to Respectful Co-parenting

The fact that there is still a requirement to demonstrate blame in divorce cases is particularly odd given that over recent years the government has heavily promoted the use of mediation during divorce.

The whole point of mediation is for couple to work constructively together to find a mutually-agreeable way forward which will always have the interests of their children (if any) at the forefront.

Even when divorce is the outcome, the idea is to move forward positively, particularly if there are children involved.

Notwithstanding this if the couple wish to divorce immediately (rather than wait two years), when the case goes to court one or the other has to shoulder the blame for the end of the marriage.

About Kerry

Kerry Smith is the head of family law at K J Smith Solicitors, a specialist family law firm who deal with a wide range of issues including divorce, domestic violence, civil partnerships and prenuptial agreements.

 

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Let’s Stop the Blame Game – the Argument for No-Fault Divorce

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Katie McCann Head of Family Law and in-house counsel at Kuits Solicitors
Katie McCann
Head of Family Law and in-house counsel at Kuits Solicitors

‘Nobody likes a snitch’ is how the playground saying goes.

Yet ‘snitching’ is what you must do in the UK in order to get divorced, without having to prove that you and your spouse have been living separate lives for a minimum of two years (or five if your spouse will not consent to the divorce).

To be able to divorce after one year of marriage, adultery or unreasonable behaviour must be cited, and these behaviours must be shown to have caused the marriage to have irretrievably broken down.

With unreasonable behaviour being the most frequently used ground, examples of such conduct have ranged from domestic abuse to the respondent not taking a big enough interest in the petitioner’s career. Whatever the accusation, the concept is always the same: the petitioner is pointing the finger at their ex-spouse and claiming that their behaviour is the reason behind the divorce.

At a time when emotions are already running high, it is certainly questionable that the law encourages ex-spouses to ‘stir the pot’ by requiring them to place blame on their ex-partner.

Explaining the rationale behind the law, Sir Nicholas Wall states: “In the nineteenth century […] divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the “innocent” party.”

Today, with 42% of marriages estimated to end in divorce[1], surely this reasoning is neither necessary nor appropriate.

no-fault divorce
Let’s Stop the Blame Game – the Argument for No-Fault Divorce

Divorce no longer attracts the same negative social connotations that it once did and therefore the quest for innocence is somewhat redundant. As Sir Justice Munby correctly questioned: “Has the time not come to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?”

Baroness Hale has been the most recent figure to answer this question in the affirmative by reiterating her call for the introduction of no-fault divorce – one that she initially made some 20 years ago.

One of the main arguments against the blame game is that it is effectively pointless.

Apart from allowing one spouse to appear ‘innocent’ and from it allegedly ‘discouraging divorce’ (a theory never necessarily proven), once the finger has been pointed there are no further repercussions. Therefore, by way of example, if adultery is alleged then this will have no bearing on the financial order that a court makes.

Another problem with fault-based divorce, and in particular with the unreasonable behaviour ground, is that it is far too broad.

As mentioned above, it can catch all manners of behaviour; indeed, it seems unfair to tarnish a spouse who does not pay their partner enough attention with the same brush as a violent domestic abuser. It also does not cater for situations where there has been unreasonable behaviour from both spouses, or adultery by one spouse and unreasonable behaviour by the other. In this situation, which spouse should be labelled as the innocent party? Surely time is wasted and emotions are drained by trying to agree who the innocent party is.

Laying the blame on one spouse is not appropriate when a couple have simply grown apart and fallen out of love. It seems unjust to force one party to make an accusation of unreasonable behaviour in this situation, especially as they are unlikely to actually agree with the claims they are making.

The government is currently attempting to get more couples to use mediation by making mediation information meetings (MIAMs) compulsory before beginning court proceedings. They are also offering a complimentary mediation session to couples where one spouse qualifies for legal aid.

The Justice Minister, Simon Hughes, has explained that mediation allows people to avoid the confrontational and stressful nature of court. But, if the government’s aim is to reduce confrontation, surely fault-based divorce must be abolished? If the starting point of divorce is to hold one spouse accountable for the marital breakdown, this does not pave the way for an amicable divorce procedure. If mediation is truly going to be a success, then perhaps a no-fault ground allowing divorce after a year is required.

[1] http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2011/sty-what-percentage-of-marriages-end-in-divorce.html

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

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