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Posted by familylaw on 18th December 2015
Divorce – does somebody always need to take the blame?

Could a change in the law provide a “no fault” divorce and give separating couples a less acrimonious way to divorce, asks Anne Shears.

The No Fault Divorce Bill has reached its second reading in the House of Commons. The Bill seeks “to make provision for the dissolution of a marriage, or a civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts; and for connected purposes”.

Essentially, MP Richard Bacon, who introduced this Bill to Parliament, wants to make an amendment to family law that allows couples to say there is no element of fault in their breakup but that they have, for example, simply grown apart.

Currently, a divorce in England and Wales requires the Court to be convinced that the marriage has broken down irretrievably. The divorce petition can be based on one of the following five reasons;

  1. the Respondent’s adultery
  2. the Respondent’s unreasonable behaviour
  3. the Respondent’s desertion
  4. the parties have lived separately for more than two years and the Respondent consents to a divorce
  5. the parties have lived separately in excess of five years.

With three of these five facts the Respondent is formally blamed for the breakdown of the marriage. The fourth reason is currently the ‘friendliest’ way of bringing about divorce proceedings, but of course can cause delay in the divorce process for two years following the separation. For some couples this presents no issue, but for many it is quite important (perhaps for financial reasons) that they conclude their divorce proceedings as quickly as they can. It can also be crucial for emotional reasons to close that chapter of their lives.

Separating couples are sometimes in a position where neither feels that they have behaved unreasonably and adultery is not relevant. Under the current legislation, a couple in this situation has to wait two years from the date of their separation to divorce. If they want to be divorced earlier, they are in a very difficult position – in effect, one of them will have to agree to take the blame to enable them to get divorced more quickly.

Family lawyers can assist the petitioner with making any allegations of behaviour within a petition as mild as possible, but the petition also needs to be strong enough to enable the divorce to go through.

It is common for tempers and patience to be stretched during a breakup and subsequent divorce, and one less source of dispute between the parties would be a positive step.

The proposal in the Bill does mean that the process of the divorce itself may take a little longer. It is currently possible, subject to both parties completing the necessary documents as quickly as they can, for a divorce to go through in six to seven months.  The Bill proposes that a longer period of time may well be required, possibly a year. The suggestion is that this will give individuals more time to reflect on whether divorce is really what they want for themselves and indeed any children of the family.

In my view, in practice this will give parties who are sure they wish to separate time to attempt to reach agreement about dividing their finances and putting in place arrangements for spending time with their children. Once all matters are resolved, these agreements can be tied up with the conclusion of divorce proceedings conducted without paperwork suggesting that either party was more at fault in the breakdown of the marriage than the other.

The idea of a “no fault” divorce is not a new one – it inevitably attracts criticism that it will make divorce easier. However, “no fault” divorce may conversely be seen as supporting a dignified end to a marriage and enabling the most positive ongoing relationship between the parties, especially where children are involved.

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