Under the current law in England and Wales, unless a married couple has been separated for two years, then a ‘fault based fact’ must be used to obtain a divorce. This means that one spouse has to cite and give evidence of the other spouse’s adultery or behaviour in the divorce petition and prove that the marriage has broken down. This construction of the death of the marriage has to be created to start divorce proceedings, even where both parties agree to divorce and do not want to blame each other. As a result, the commencement of divorce often adds fuel to the fire and generates increased hostility between divorcing parties at an already difficult time.
The Government today closes its consultation on the reform of divorce law and how the law could be changed to limit family conflict. The consultation proposes to remove the requirement to allege fault. Penningtons Manches’ family team has responded in favour of this proposal. It is our view that the need to blame one party and provide detail to support the facts cited does not dissuade people from divorcing their spouse, but does cause further upset. This is not in line with the objectives of modern family law which emphasises the need to minimise conflict and confrontation.
Occasionally, the apportionment of blame can lead to contested divorce petitions, as was seen in the case of VW v BH, which came before the family court last month. Her Honour Judge Lynn Roberts described it as a ‘tragic destruction of family relationships’. The wife had issued a divorce petition based on the husband’s adultery, which he contested, despite having admitted he had committed adultery for 22 years and regardless of the fact that he himself also sought a divorce. Wanting to disprove his wife’s petition, the husband insisted on going to trial and cross examined the wife’s witnesses including his own daughter, including on a range of very personal issues. HHJ Roberts described the intrusive questions raised as a ‘difficult and painful experience’ for all to endure. In the end, the wife was granted her Decree Nisi and the husband was ordered to pay her costs. Although the eventual outcome was to be expected (the divorce was granted), this case highlights how the fault based system can exacerbate conflict and cause emotional and financial damage to families and how the process of attributing blame can lead to accusations and hurt being suffered beyond the confines of the parties to the divorce itself, including the children.
At the moment our outdated divorce law places the focus of divorce proceedings on an accusatory footing when often a relationship breaks down over time for a multitude of reasons. The focus needs to be shifted to promote co-parenting and finding a way forward which respects that ending a marriage should be a private decision between autonomous adults. The law should not force people to detail for a court what’s happened in the past. Our response to the consultation outlines our views and the hope that there can be a legal route for divorce which does not apportion blame, or promote conflict but focuses instead on resolution and a new, constructive, path for all parties involved.
To read our response to the consultation in full, please click here.