No fault divorce: the next step on a long journey

  • October 08, 2015
  • By Hunters Law

On 13th October 2015 a ten minute motion will be debated in the House of Commons at the instigation of Conservative MP Richard Bacon, seeking to bring in a bill providing for no fault divorce. No fault divorce would allow couples to divorce simply on the basis that they agree that their marriage has irretrievably broken down.

Proposals to bring in no fault divorce have been around for decades. Almost 20 years ago, in 1996, legislation was passed providing for no fault divorce, only for the relevant provisions not to be brought into force (due to a change in government), and eventually repealed.

So what is the law at the moment, how did it get there, and what are the arguments for change?

The current law is over 45 years old, having been enacted in 1969. This law brought in a single ground for divorce: that the marriage had irretrievably broken down. The difficulty, however, is that the person applying for the divorce must prove the irretrievable breakdown through one of five “facts”:

  1. That their spouse has committed adultery, and that the person applying for the divorce finds it intolerable to live with them;
  2. That their spouse has behaved in such a way that they cannot reasonably be expected to live with them;
  3. That their spouse has deserted them for two years;
  4. That the parties have lived apart for the past two years and both consent to the divorce; or
  5. That the parties have lived apart for the past five years.

Therefore, if a couple wish to divorce without waiting two years after they have separated, one of them must establish that the other has committed adultery or behaved unreasonably. It has long been argued that this position is not satisfactory.

A 1990 Law Commission Report entitled “The Ground for Divorce” criticised the existing law as confusing and misleading, doing nothing to save marriages, provoking unnecessary hostility and bitterness, and potentially making things worse for any children. The report recommended that the law be changed so that the only way to establish irretrievable breakdown would be the expiry of one year from the date of separation to allow for “consideration of the practical consequences which would result from a divorce and reflection upon whether the breakdown in the marital relationship is irreparable“.

The 1996 legislation would have brought this into effect, requiring attendance at an “information meeting” providing information about divorce and giving the parties the opportunity to meet a marriage counsellor, to be followed by a mandatory nine month “period for reflection and consideration”. However, as explained above, the relevant provisions were never brought into force and have now been repealed, meaning that the law remained unchanged.

The position therefore continues to be that where a couple does not wish to wait two years for a divorce one of them must allege “fault” (adultery or unreasonable behaviour) by the other.

Solicitors can (and should) advise clients that relatively mild behaviour allegations will suffice to achieve a divorce based on the other party’s behaviour, and that the details given should be phrased sensitively and if possible be agreed. However, even then, the process of describing the behaviour, and of attributing fault for the breakdown of the marriage to one party, is likely to obstruct the process of establishing a constructive post-separation relationship.

Where divorcing parties do not have legal advice (and many do not), the only advice available may be that printed on the official court guidance notes which state that “If you have alleged unreasonable behaviour give details of a course of conduct, or, particular incidents, including dates, but it should not be necessary to give more than about half a dozen examples of the most serious incidents, including the most recent“. It is easy to see how following this advice would lead to increased animosity, blame and distress, which is not in the interests of the parties or of any children they may have.

Richard Bacon’s proposal would allow a divorce to be granted “when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts“. This would remove the need to attribute blame, without introducing the delay which the 1996 provisions would have involved. Introduction of legislation on these lines would be a welcome step forward, removing an obstacle which serves no real purpose but can increase bitterness and hostility at an already difficult time.  It would also save time and money as the court would be able to process the applications more quickly, without having to consider the allegations. Finally, it would bring us into line with many other jurisdictions around the world and allow separating couples to concentrate on their children and on finalising financial arrangements.

Anna Roiser



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