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No fault divorce?

View profile for Pamela Donnellan
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Is ‘no-fault’ divorce coming to England and Wales?

The only ground for divorce in England and Wales is that the marriage has broken down irretrievably. The court cannot hold that the marriage has broken down irretrievably unless the Petitioner satisfies the court of one or more of five facts:-

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years’ separation with consent; or
  5. Five years’ separation.

As it stands currently, the law relating to divorce does not permit a ‘no-fault’ divorce until a period of at least two years has passed from the date the parties separated. If parties want a divorce sooner they have to rely either on the basis that the non-petitioning party to the divorce, the Respondent, has committed adultery or that they have behaved unreasonably.

We often see clients who are seeking advice in relation to a divorce and make it clear at the outset that they want matters to be dealt with as amicably as possible – they may have children or just want to try and remain friends with their spouse – yet do not want to wait for two years for a ‘no-fault’ divorce. For many clients, when the law is explained to them their reaction is one of concern: they do not want to be perceived as causing animosity by making allegations in order to get a divorce, but, on other hand, they do not want to wait. When asked why they would like a divorce some couples say ‘We’ve become more like friends or brother and sister, we just don’t want to be married to one another anymore’. For these couples, having to apportion blame is often very difficult. They are often reluctant, but forced, to lay ‘blame’ at each others door.

Some senior members of the Judiciary, including the current President of the Family Division of the High Court, Sir James Munby, and Mediators and Resolution (a national  organisation of family lawyers committed to non-confrontational divorce), have been saying for a while now that our divorce law needs to be reformed and needs to include a so called ‘no-fault’ divorce provision. There are others however, who argue against reform, concerned that a ‘no-fault’ divorce would cause the divorce rate to escalate. It is perceived that a reform in the law would make it easier to get a divorce, making couples less inclined to remain married.

Attempts have been made to reform the law in the past.  The 1996 Family Law Act did introduce ‘no fault divorce’, which required the parties to attend information meetings in the hope of encouraging reconciliation wherever possible. There were numerous pilot schemes which resulted in the Government at the time saying the provisions of the 1996 Act were not workable. The provision has now been repealed.

Figures provided by the Office of National Statistics show that in 2012 there were 118,140 divorces in England and Wales, of those 62% were fault based. I do wonder how many of these were couples who wanted to divorce amicably but for whatever reason did not want to wait two years and so were forced to enter into ‘fault’ based proceedings.

The law is not the same in other parts of the UK; Scotland, for example, has reformed its divorce law. Until relatively recently Scottish law was very similar to the law in England and Wales but not now. Now couples seeking a divorce in Scotland can divorce by consent a year after separation, as opposed to the two years in England and Wales, or after two years where the other party does not consent, as opposed to five in England and Wales.

It remains to be seen whether England and Wales will follow suit, but the issue of whether a ‘no-fault’ divorce should be introduced remains very much up for debate.