Has the time come for ‘No Fault’ Divorce?

Wed 30th May 2018

With so much positive change in the world of marriage and civil partnerships, it comes as a surprise to many that the divorce process is so prehistoric. The introduction of gay marriage and talk of making civil partnerships available to heterosexual couples is bringing the legal basis for relationships into the 21st Century.

In utter contrast to this, if your marriage or civil partnership does not stand the test of time, the law still lacks a painless and quick way to divorce or dissolve your civil partnership without placing blame. Whilst there is an increased focus on alternative dispute resolution as a means to resolve your finances or disputes in relation to the arrangements for children, the divorce process itself remains trapped in the dark ages.

The current law in respect of divorce and dissolution requires one party to petition ‘against’ the other on the ground that the marriage has broken down irretrievably. This must be done by relying on one of five facts, the most common of which are ‘Adultery’ and ‘Unreasonable Behaviour’. In both scenarios, one party is required to make allegations against the other. Interestingly, even the advice page relating to divorce on the government website uses inflammatory terminology and refers to a spouse who can “no longer bear to live with the other person. This is in contrast to the government agenda to encourage people to mediate their disputes by making attendance at a Mediation Information and Assessment Meeting (MIAM) a compulsory requirement before being able to make an application to the court.

In the case of a petition based on Adultery, it requires for either the adulterous party to admit to the adultery, which is often not forthcoming, or the for the petitioner to be able to prove that the adultery has taken place which can be more difficult than is often anticipated, unless for example, there is a child of the adulterous relationship. As a result, the vast majority of divorce petitions rely on the fact of ‘Unreasonable Behaviour’. However, placing the blame at the point of issuing divorce proceedings can be very inflammatory and the temperature is invariably raised between the parties. This can make a constructive resolution in respect of finances or arrangements for children far more difficult to achieve which ultimately increases the costs for each party and results in there being less to go round when financial resolution is finally achieved.

In an increasing number of cases, couples may have simply grown apart or want different things and no longer want to be married to the other. In this instance, in order to progress their divorce they would need to file a Divorce Petition based on ‘Unreasonable Behaviour’ (or wait a significant length of time as set out below). This often results in one party scratching their heads trying to think of ‘reasons’ they can give as to why the other person has behaved intolerably that will be sufficiently strong enough to satisfy the court. At the same time, they are trying to balance this with the reality that they still need to have constructive negotiations in order to resolve their finances, and in many cases they have to maintain a life-long parenting relationship with their former spouse or civil partner.

The only current alternative to pointing the finger is to file a Divorce Petition relying on ‘2 years separation by consent’. If a couple has already been separated for 18 months then they may feel that waiting a further six months to divorce without blame is an attractive proposition rather than to go under the mud-slinging that can accompany an ‘Unreasonable Behaviour’ Petition. However, if the relationship has only just broken down, the thought of being in limbo for two years in order to divorce by consent may feel like a lifetime, during which the parties may feel unable to move on and remain legally married to one another, which can have far-reaching consequences in terms of eligibility for welfare benefits, pension entitlement, death in services benefits, to name but a few.

As a result, the campaign for a “no fault” divorce is making the headlines and there is hope that such a possibility may finally be on the horizon. This would bring about an alternative to a blame-filled Petition based on adultery or unreasonable behaviour and would not require you to wait for two years before it is possible to file your petition by consent. When so much has been invested into alternative methods of resolving family law disputes and to divorcing with dignity, it must surely be time for change?