Modernising Divorce – Calls for “no fault” divorce reform

Monday 7 March 2016

Divorce is common in the UK with almost half of all marriages sadly ending in divorce. Many people no longer see marriage as a life time commitment. Couples are often keen to finalise a quick divorce and settlement of finances to reduce heartache, stress and emotional strain. At present, the sole ground for divorce in England and Wales is the irretrievable breakdown of the marriage.

This factor has to be supported by one of five facts.

If a couple wants to divorce immediately following the breakdown of their marriage then the available facts are either one party’s adultery or unreasonable behaviour although, they must have been married for 12 months or more to rely on either of these. For civil partners wishing to dissolve their partnership they cannot do so citing adultery due to the legal definition of ‘adultery’ and so the only means to an immediate dissolution is to cite examples of one party’s unreasonable behaviour. To divorce or dissolve a civil partnership without alleging any fault, it is currently necessary to have been separated for more than two years and this also relies on both parties agreeing to that.

Current divorce law is set out in legislation dating back to 1973 and the average time to finalise a divorce is usually between 4 to 6 months. In many divorce cases it often takes longer because it can take time to agree a financial settlement and it is common practice to wait until this has been sorted out before applying for Decree Absolute.

Widespread support has being growing for “no fault” divorce legislation to be passed to allow couples to divorce immediately after their marriage has broken down without having to wait for 2 years of separation and without having to allege adultery or unreasonable behaviour to avoid having to wait. http://www.familylaw.co.uk/news_and_comment/resolution-urges-mps-to-get-behind-no-fault-divorce#.VsX7yU1FDDc

Proposals have been made to make amendments to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 which would allow couples to send a joint petition to the courts and proceed to the decree nisi stage quickly and efficiently. However there would be a 12 month cooling off period before the decree absolute can be finalised.

On the other hand Resolution’s Manifesto for Family Law seeks that all fault based divorce to be completely abolished and considers a 6 month ‘cooling off’ period that than the proposed 12 months.

Research carried out by resolution in June 2015 revealed that over half of all divorce petitions filed were fault based and in most cases cited unreasonable behaviour or adultery.

Resolution’s research, carried out by YouGov (June 2015), found that:

• 52% of divorce petitions were fault-based alleging either unreasonable behaviour or adultery
• 27% of divorcing couples who asserted blame in their divorce petition admitted the allegation of fault wasn’t true, but was the easiest option

Resolution chair Jo Edwards says: “We know that our current fault-based divorce system achieves nothing besides escalating conflict during divorce. It does not act as a deterrent, nor does it help couples to salvage their marriage”.

No fault divorce is also supported by Sir Nicholas Wall, president of the High Court’s Family Division, who stated that he could “see no good arguments against no-fault divorce. Sir Nicholas Wall stated ‘I am a strong believer in marriage. But I see no good arguments against no fault divorce’ http://www.bbc.co.uk/news/uk-17522726

It remains to be seen if and how things will change but the introduction of any significant change to the Matrimonial Cause Act is unlikely to take place for some time.