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No fault divorce - coming soon!

Posted: 25/11/2016

On 30 November, lawyers, barristers and many involved in the family justice system will lobby Parliament at Westminster for a change to the present divorce laws. This lobbying is part of a campaign to introduce a no fault divorce into legislation. There is a history to this campaign. Twenty years ago, a form of no fault divorce was incorporated into legislation as part of the Family Law Act 1996 but militant lobbying by those opposed to the principle of no fault divorce, including some national newspapers, resulted in certain sections of that Act never being enforced and some parts being repealed. It was felt at the time that this would make divorce too easy.

Since then, there has been an ever-increasing recognition that the present system is no longer fit for purpose and indeed can cause unnecessary conflict and confrontation. In 2015, Richard Bacon introduced a no fault divorce bill under the ten minute rule. He proposed that couples should have the option to declare jointly that their marriage had broken down without relying on fault based facts.

Each divorce today has to be based on an irretrievable marriage breakdown but that has to be evidenced by one of five facts. Three of those facts are time related. Two are fault based and are not time related. If a husband or wife wishes to take divorce proceedings, does not want to wait for two years and there is no adultery on the part of their spouse, then they have no option but to rely on the other spouse’s unreasonable behaviour. Even with the two year period, the other spouse has to consent to the proceedings being taken. In the absence of consent, then that period is extended to five years.

For those reasons, many spouses who are contemplating divorce and who may well have been giving the matter serious consideration for many years, rarely wish to wait another two years to start divorce proceedings in the absence of an adultery petition on unreasonable behaviour. Research carried out in 2015 by Resolution, a body of specialist family lawyers with a code of conduct to be conciliatory where possible, found that 52% of petitions were fault based alleging either unreasonable behaviour or adultery.

The allegations of unreasonable behaviour have to constitute such behaviour as would lead the petitioner to believe the marriage has irretrievably broken down and as a consequence to no longer wish to live with their spouse. The grounds however are subjective as each spouse will have their own limits of tolerance. Resolution has over 6,000 members and over 90% agree that no fault divorce should be available to separating couples. 

The judges too are increasingly aware of the artifice of some behaviour petitions. Sir James Munby, the President of the Family Division, said in a speech in 2014: “The reality is we have and have had in this country for the best part of 30 years now divorce by consent. He referred in his speech to “anaemic allegations of misconduct” and recommended that some intellectual honesty was brought to the situation to get rid of the unnecessary process which simply makes life more complicated because the district judge under the present system has to go through the ritual of considering whether the anaemic allegations contained in the petition drafted by agreement do or do not amount to unreasonable behaviour. Worse are the petitions drafted where innumerable and highly contentious allegations are bandied about.

The fact is defended divorce petitions are rare and are cautioned against as they often result in punitive costs orders being made. Most judges accept that if one party to the marriage believes that the marriage has irretrievably broken down, it probably has. Since 2014, the requirement to inform the court about the children’s arrangements on divorce has been dispensed with and there are plans afoot to introduce online petitions imminently.  In the circumstances, it is time for a fresh look at divorce legislation in this country and to support moves to promote the introduction of no fault divorce. For those wishing to back the campaign, please write to your MP and join in on Twitter using the hashtag #abetterway.

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Penningtons Manches Cooper LLP