No Fault Divorce, should the law be reformed?

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No Fault Divorce, should the law be reformed?

With ‘Good Divorce Week’ now upon us it is a useful opportunity for family lawyers to reflect upon the divorce system in England and Wales. Indeed is there such a thing as a good divorce and do we practice what we preach?

 

Under our current system and to satisfy the court that ‘the marriage has irretrievably broken down’ a divorcing couple must either rely on the other’s unreasonable behaviour or adultery. Whilst other options or ‘facts’ are available to include 2 years separation with consent or 5 years separation without consent, this is often a nearly impossible threshold for the parties. This can prove problematic for families where there are children or where couples both know the marriage can no longer be salvaged and wish to move on with their lives. Is it realistic that they should wait for 2 or indeed 5 years to be able to divorce on a no fault option?

 

Calls for ‘no fault divorce’

 

It would seem that the current divorce system is at odds with the court’s approach in dealing with financial claims within divorce proceedings. Within financial proceedings couples are actively encouraged to settle financial issues by consent and there are now wide ranging options to facilitate this. Indeed in most cases couples are encouraged by their solicitors to try and reach financial agreement outside the court process.

 

There have been many claims that the current divorce process which apportions blame may exacerbate conflict and acrimony that may not have been present before. Sir James Munby, President of the Family Division, previously stated that ‘no fault divorce’ could deviate parties from the Court process and ‘could be dealt with by a registrar as an administrative matter and would bring some intellectual honesty to the system’.

 

With current processes requiring one half of the divorcing couple to blame the other for the breakdown of the marriage and to find behaviours to satisfy this fact seems unjust. With blame and cost implications causing further acrimony which may not have been present before it is clear that the law needs to be changed. The ‘floodgates’ argument if the ‘no fault divorce’ were implemented is now very much put into question.

 

Good divorce week

 

‘Good divorce week’ is a national campaign pioneered by Resolution and from 28 November to 2 December 2016. On Wednesday 30 November members of Resolution will travel to Westminster to lobby for a no fault divorce system.

 

Resolution is an association consisting of family justice professionals, whose code of conduct is to ensure that clients’ needs are listened to and conflicts managed with a view to reaching a mutually agreeable solution.

 

With current divorce processes requiring ‘blame’, civilised discussions and negotiations often fall away. Couples are often left resentful and hope of future civil relations lost. Resolution seeks to avoid capricious behaviours and to actively seek out amicable and cost effective options.

 

With their recommendation that the current system is long overdue reform, it is envisaged that most divorces could be settled amicably. With proposals to require either one or both parties to give notice that the marriage has irretrievably broken down and if after six months either or both parties still feel the marriage cannot be reconciled, the divorce would be finalised. This more informal approach is envisaged to save relations between the parties, which would have a positive impact looking ahead when dealing with children or financial issues.

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Mei-Ling McNab Partner & Head of Family

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