The subject of no-fault divorce has been in the news recently. By the time you read this, a bill introduced by Conservative MP Richard Bacon will have been given a second reading in Parliament. As a Private Member’s Bill it is unlikely that the Bill will ever be enacted, but it is certainly encouraging that debate of this important issue is back on the political agenda. Not that we haven’t been here before. Part II of the Family Law Act 1996 also provided for no-fault divorce, but that part of the Act proved to be poorly drafted and ultimately unworkable. It was scrapped in 2001.
So what exactly is a no-fault divorce? Under the current divorce laws, spouses may only file for divorce in accordance with one of the statutory grounds: adultery, unreasonable behaviour, desertion, living separately for 2 years (with agreement) or 5 years if the former partner does not agree. In other words, in order to start divorce proceedings in England & Wales without waiting at least two years one of the couple has to use either adultery or unreasonable behaviour as the reason for the marriage breakdown. What the current Bill proposes is to “make a provision for the dissolution of a marriage or civil partnership 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”.
For those of us that spend our working lives dealing with the effects of family breakdown, the principle of fault in divorce proceedings is anachronistic, and a throwback to an earlier age when a private eye would be booked to attend a hotel room, camera in hand, to supposedly catch a couple in the act of adultery in order for a divorce to proceed through the courts. Because of this anachronistic requirement, we also have to deal with the frustration of clients when we explain that it doesn’t matter if neither party wants to blame the other; it makes no difference if they want to deal with provision for their children and finances in a civilised manner through mediation, collaborative law or negotiation between solicitors. They have to play the blame game if they don’t want or can’t afford to wait two years, as do we as family lawyers working with them to limit the fallout and helping them to get everything resolved as amicably and cost-effectively as possible.
Even if Richard Bacon’s Bill successfully makes its way through Parliament, for those couples that cannot agree on at least two key points – financial settlement and arrangements for children – we will still be left with a position where a couple are unable to divorce without pointing fingers and assigning blame to each other. Divorce is rarely easy for those going through it, so it is high time that we discarded a legal process that actively encourages accusations that only add to the pain and stress for the parties involved.