The divorce laws in England and Wales look like they may finally change to a “no fault” basis.
Justice Secretary David Gauke said that the changes would help to end the “blame game”.
The present law is some 50 years old and to show that a marriage has irretrievably broken down, a spouse needs to show one of five “facts”:
- Unreasonable behaviour
- Two years separation with the other party’s consent; or
- Five years separation
In my experience, the common basis for a divorce is “behaviour” and whilst the divorce process has become streamlined and paper based, nevertheless allegations of behaviour, or cross-allegations, can make a very difficult and upsetting split become even more acrimonious and expensive.
Not only that, but the emotions can run very high and inevitably over-spill in relation to the financial or childcare arrangements. This is not always a conscious intention but in my experience, the basis of the present law does negatively impact and makes resolving family law matters much more difficult and expensive.
The argument against the proposed change in law is that it undermines the sanctity of marriage and therefore allows spouses an easy route out; therefore making a marriage more disposable.
However, the new rules will actually include a minimum time frame of six months from the divorce petition stage to the decree absolute, which is the final divorce order. At the end of this period, the spouse asking for the divorce will need to affirm their decision to seek a divorce. The Government says that this will give a “meaningful period of reflection” and the “opportunity to turn back” i.e. it is a bit of a cooling off period, which I think is sensible.
Another interesting aspect of the proposed new laws is that there will be an option to allow couples to apply for a divorce jointly.
Why now? Many commentators will say that society has moved on and the divorce laws are now outdated. This is true but of all the years, I have been in practice, some 20 +, there has always been noise about changing the laws together with various campaigns, for example, via Resolution, which is a national body for family lawyers.
The fault-based system of divorce in England has always created acrimony in my view; and the change to a “no fault” basis is very welcomed but long overdue. What I have seen in the last 10 or so years is certainly a shift by the Government and the courts to divert people away from the court system e.g. to use mediation and to look to resolve their disputes in a more conciliatory way. However, this has always conflicted with the ‘fault’ based divorce and the bad feeling created as a result especially where the parties start “mudslinging” from the outset. That does not create a sound foundation to reach a resolution whether in terms of the divorce, the finances and the children.
Hopefully, by overhauling the divorce laws, this can help prevent or avoid some conflict between parents, and to reduce the negative impact it has on the children and their own futures. Hostility and bitterness should be kept to a minimum and everyone should be looking at how to sensitively and sensibly end the relationship and move on; keeping in mind always the best interests of the any children.
The divorce plans follow a 12-week public consultation and unsurprisingly there has been overwhelming support for a ‘no fault’ divorce. Mr Gauke has stressed that the new divorce laws will be introduced as soon as possible “when parliamentary time allows” but we all know that Parliament has other priorities, such as Brexit, It is, however, very important that the proposed divorce law changes continue with this momentum.