The Future of No Fault Divorce

The Future of No Fault Divorce

17 January 2017 Mary McEvoy

There is no denying that society’s attitude towards marriage has changed over time, whether due to strides towards gender equality, or perhaps increased opportunities to work abroad. Even in relatively recent history, the divorce rate has increased. For instance, of those marriages entered into in 1968, 20% had ended in divorce by the 15th anniversary, but increasing to 32% of marriages entered into in 1998, and the trend is set to continue in the coming years.

It is therefore clear that family law has a hard job to keep up with changing attitudes towards marriage. It can be argued that divorce law is no longer adequately providing for those situations where couples amicably split, or where neither party is interested in arguing about the divorce. One proposed solution to this problem is the idea of “no fault divorce”.

What is “no fault divorce”?

At the moment, a party can petition for divorce on the basis that their marriage has irretrievably broken down, and this must be supported by one of five facts. The five facts are :-

  • Unreasonable behaviour of the other party
  • The other party’s adultery
  • Desertion for two years by the other party
  • Separation for five years from the other party
  • Separation for two years from the other party with the other party’s consent.

Facts 1-3 require the petitioning party to allege that the other party has committed a fault of some description and that their actions are therefore the reason for the divorce. Currently the only facts where fault is not alleged are numbers 4 and 5.

In practice, it is often the case that parties rely on facts 1 or 2, and indeed Resolution, (a family law interest group), published research in June 2015 which found that over half of all divorces were fault-based. Interesting, but somewhat concerning, is that the same research found that 27% of those divorces had been based on alleged faults which were actually untrue.  This suggests that there is a need for an option for couples to divorce without having to rely on finding fault with the other party, and without having to wait two years and get the other party’s consent to a divorce, which is at best impractical in most cases.

Having established that there may be a need for no fault divorce, why might there be that need?

In my experience, and in the experiences of my colleagues and the wider profession, often there are couples who have simply drifted apart and have reached an amicable and joint decision to divorce. A no fault divorce would give them the sensible option of continuing their relationship amicably, which is clearly healthy for the parties involved and, in particular, any children.

 

Often, parties will also have financial settlements or children matters to consider alongside their divorce, and forcing couples to rake over old ground and find fault with each other often forces the process to be more acrimonious than it could be. A conciliatory and co-operative approach would greatly assist with finalising not only the divorce but these ancillary issues in a way which is not only less consuming of the couple’s time and emotional resources, but could also save them a lot of money which would otherwise be spent on protracted arguments.

The No Fault Divorce Bill had its first reading on 13 October 2015 in the House of Commons, but has since been discontinued. The Bill attempted to introduce an option for couples to submit a joint divorce petition without having to refer to any fault on either party’s behalf.  Being able to submit a joint petition would have clear cost benefits to both parties too, as they would not incur separate legal costs.

Indeed, one of the leading family law judges, Sir James Munby, argues that rather than requiring a judge to deal with a divorce petition, no fault divorce could be handled as an administrative matter, which would have time and costs savings of its own. Some family law practitioners, however, are keen to point out that marriage is legally binding, and thus divorce should continue to be dealt with as a legal process.

Sir James Munby does accept that in certain cases “devastated individuals…may wish to retain fault as another reason for the irretrievable breakdown of marriage”. Arguably, it is not the place of the law to take away a party’s option to place blame where they feel it legitimately lays.

We often advise clients when they consult us with a divorce petition that has been issued against them that the court do not make findings of fact when considering the divorce petition, so there is little merit in requesting that the content of the petition is amended, and that the fault alleged may simply be included in the petition to ensure that a judge finds it meets the fact relied upon. This does therefore beg the question, if the court does not make a finding of fault anyway, why do parties need to allege that one is at fault in the first place? Obviously, no fault divorce would address this.

The future of no fault divorce

Other countries, for instance Australia, USA and Spain, have had no fault divorce for a number of years now and on 30 November 2016, there was a lobby day at Parliament attended by family law organisations, MPs and practitioners to campaign for no fault divorce in England and Wales. Therefore there may yet be a review of the divorce process in Parliament, but currently there are no plans to update the law to include a no fault divorce option.

Ultimately, Neves recognise that divorce must be approached on a case-by-case basis and that no one solution will adequately work for all. We will work with you to tailor the process so that it best suits you, and it may be that future amendments to the law could mean that this includes the option for couples to proceed with a no fault divorce.

If you would like to discuss applying for divorce, or any other matter relating to family law, please do get in touch with our Family Department who will be happy to help: family@nevesllp.co.uk.

All information correct at the time of initial publishing: January 2017.