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/ 22 Mar 2016

No Fault Divorce

As it currently stands, there is one ground for divorce in England and Wales being the irretrievable breakdown of marriage, with five facts available to evidence it within the divorce petition. These facts are: unreasonable behaviour, adultery, desertion, separation for two years with the other spouse’s consent or separation for five years with no consent required.

Unless the petition proceeds on the basis of separation, blame must be attributed for the divorce to proceed. The petition does not allow for parties, who wish to do so, to simply state that the marriage is over, in essence asking instead ‘who’s fault is it and why’? The parties are therefore asked to directly attribute fault at the outset for the breakdown of the marriage, unless they are prepared to wait for two years prior to issuing divorce proceedings.

The current approach has given rise to criticism. It has been argued that it is counterproductive as it can all too often encourage conflict between parties; it is artificial in content as it attributes the breakdown of a marriage to the actions of one party, largely ignoring the complex nuances of relationships; and perhaps most importantly it is of limited practical value given that the reasons for divorce rarely make any difference to any financial settlement or child arrangements flowing from the divorce.

The infrastructure of modern family law operates to a large degree around the principle of focussing efforts on resolving disputes, rather than investigating their cause, in the interests of minimising discord between divorcing couples and facilitating long term amicable arrangements. Efforts are ongoing to enshrine this approach in the practice of family law, yet we are curiously still faced with a divorce petition which appears to somewhat undermine this widely adopted principle.

There have accordingly been ongoing efforts in England and Wales to change the status quo in favour of a no fault divorce. The most recent attempt is encapsulated in the No Fault Divorce Bill which you can read by clicking here. This Bill is due for a second reading at the next session of parliament. The proposed legislation would amend existing marriage and partnership law, making amendments to both the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004. It aims to introduce an option to divorce through the written consent of both parties, with no requirement to attribute fault.

Baroness Hale of Richmond has previously called for no-blame divorce whilst Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales, are joining several others in campaigning in favour of a no fault divorce. The United States, Australia, Canada, Sweden and Spain, Russia and China already offer the option within their own jurisdictions. Time will tell whether England and Wales will soon be joining them in light of the growing support for change.

Elizabeth Simos

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