“No fault divorce” – risky concept or long overdue?

Couple

All too often we hear the media reporting the latest celebrity divorce and claiming it was granted on the ground that the marriage had “irretrievably broken down.” Cue the eye rolls of every family lawyer.

 

Whilst it is true that there is only one ground for divorce, that being that the marriage has irretrievably broken down, it is not enough to simply claim that. The ground has to be backed up by proving one of the following five facts: -

  1. Adultery – if your spouse has committed adultery (only applicable upon divorce and not dissolution of civil partnership)

 

  1. Unreasonable behaviour – if your spouse has behaved in such a way that you can no longer be reasonably expected to live with them

 

  1. Two years desertion – if your spouse has left you for two years or more without your consent

 

  1. Two years separation with consent – if you have been separated for two years or more and your spouse consents to a divorce

 

  1. Five years separation – if you have been separated for five years or more (there is no requirement for your spouse to consent to a divorce in this case)

It is noticeable that three out of the five facts, namely adultery, unreasonable behaviour and desertion, involve imparting fault and blame. Rely on one of the other two remaining facts and whilst you may be separated from your spouse, you have to wait at least two years, if not five, to be able to gain full legal independence from them. Neither option offers relief for those who have simply concluded that their marriage has come to end and wish to divorce as amicably as possible.  Clearly there is a gap in the law – a “no fault divorce” shaped gap.

 Main advantages of “no fault divorce” -

  • Less risk of conflict – if there is no blame being thrown around, spouses are more likely to remain amicable throughout an already difficult time. This is especially important when the parties have children together as they will need to continue to have a dialogue long after their marriage comes to an end.  

  • Quicker – no time constraints if none of the fault based facts apply.

 Main disadvantages of “no fault divorce”

  • Some critics of no fault divorce say that more people may turn to divorce when faced with difficulties in their marriage – there is a risk that the divorce rate would increase

  • Undermining the institution of marriage – if getting a divorce is made easier, it could be argued that the principles behind marriage, for example commitment, are undermined.

 Why do we not already have provision for “no fault divorce”?

The concept of  “no fault divorce” was recently explored in a House of Commons Library Briefing Paper published on 17th October 2017.  The paper highlights how there have been several attempts to introduce the concept, for example, by way of Part 2 of the Family Law Act 1996 which was subsequently repealed and in 2015 when Richard Bacon put forward a 10 minute rule Bill to allow for such provision which did not make it any further. Ultimately the paper states that “the Government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.”

 Is there any evidence to suggest there is a need to change the law?

A major research study into current divorce law and reliance on fault by the Nuffield Foundation recently published its findings on 30th October 2017. The study found that parties tend to rely on fault, in particular the fact of behaviour, as a way of achieving a quicker divorce. It was further found that pressure is felt by parties to exaggerate their claims and that producing evidence to prove fault can lead to unnecessary conflict. The study reaches the conclusion that the law already seems to provide a way to achieve a quick divorce but one which comes with potentially damaging consequences. Reform is suggested by way of making divorce possible if “one or both spouses register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months.”  Whether this suggestion for reform, or in fact any suggestion, is taken into consideration by the Government further down the line is something to look out for.

 Where do we go from here?

Whilst there are compelling arguments on both sides, it cannot be ignored that the law as it stands does not accommodate for all circumstances and inevitably forces spouses down the road of fault or punishes them by making them wait at least two years. The Government may not see it as a priority now but it is certainly an area that is shouting out for reform.

 

Full sources: -

House of Commons Library Briefing Paper, 17th October 2017 – “No-fault divorce”

http://researchbriefings.files.parliament.uk/documents/SN01409/SN01409.pdf

 Nuffield Foundation Report, 30th October 2017 – “Finding Fault? Divorce Law and Practice in England and Wales”

http://www.nuffieldfoundation.org/sites/default/files/files/Finding_Fault_full_report_v_FINAL.pdf

 

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