201711.28

Should we have “no fault” divorce?

Recent surveys indicate divorce affects more than 100,000 families in England and Wales every year. If separating couples want to get divorced before two years of separation, they cannot do so without blaming each other. They must submit a petition detailing how the other is ‘at fault’. A study led by Professor Liz Trinder, Exeter Uni (funded by the Nuffield Foundation) shows that divorce law in England and Wales can “exacerbate unnecessary conflict with damaging consequences for children” and “runs contrary to the thrust of family law policy.”

Currently, in England and Wales, there is only one ground for divorce – irretrievable breakdown of the marriage. Yet a petitioner (the spouse who files the divorce petition) is required to demonstrate this by using one of five ‘facts’ in evidence in order to be granted a divorce.

The five facts are:

1. Behaviour which makes it unreasonable to expect the petitioner to live with the respondent,

2. Adultery,

3. Desertion for at least two years

4. Two years separation with consent of the respondent, or

5. Five years separation without consent.

Only the last two do not require the petitioner to blame their spouse, yet the researchers found that these options also pose significant difficulties for families.

Family practitioners and petitioners interviewed for the study are of the views that it is “not often economically or emotionally possible to wait for two years…to sort out family finances or to keep children in limbo”.

While citing unreasonable behaviour was found to be “generally the best vehicle for achieving speed and certainty”, this needs to show “fault”. In a national survey, 62% of Petitioners and 78% of Respondents said that in their experience using fault had made the process bitter, 21% of fault-respondents said fault had made it harder to sort out arrangements for children, and 31% of fault-respondents thought fault made sorting out finances harder.

As the use of fault may trigger, or exacerbate, parental conflict, with a negative impact on children, supporters of no-fault divorce are pressing for a change in the law.

The study also identified “two different and mutually exclusive moralities in relation to divorce: a traditional one based on ideas about individual justice for the petitioner, and a responsibility morality based on the ‘good divorce’ where the focus is on harm-minimisation”. The current law encourages bitterness and denies parting couples the opportunity to split amicably, so is seen by campaigners to be out of date since it opposes the realities of modern society and the increasingly problem-solving based justice system.

Four options for next steps were considered, ranging from no change, to a notification system where one or both parties submit notification of their intention to divorce without apportioning blame. A detailed evaluation of the advantages and limitations were considered, but at the end of the day notification divorce came out with the upper hand. The conclusion was that this approach is fair, simple and cost-effective, and would bring England and Wales in line with many European and North American jurisdictions.

Most notably, it would eliminate both the bitterness and dishonesty which come from fault-finding. Many lawyers also agree that a clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, is necessary in order to remove fault entirely.

There has been an increasing demand for no-fault divorces from many representatives but the million dollar question is – with such a busy current schedule, will Parliament act?

Vijaya Sumputh
Curwens LLP