“I just no longer want to be with them…..”
…and upon hearing these words, family lawyers in England and Wales have to explain to their client that, in the absence of adultery, they must either wait for a significant period of time before they can get divorced or will need to identify examples of their partner’s unreasonable behaviour.
Under the Matrimonial Causes Act 1973, a court faced with a divorce petition has to be satisfied that a party has:
- committed adultery (if married);
- behaved unreasonably;
- been deserted for 2 years;
- been separated for 2 years with the other party agreeing to the divorce; or
- been separated for 5 years, at which point they can proceed without the other’s consent.
Therefore, in cases not involving adultery, unless the party making the application for a divorce is willing to wait and their partner agrees to the divorce, they could conceivably have to put their life on hold for 5 years before they can petition for divorce. The only alternative would be for them to start the charade of pointing the finger of blame for unreasonable behaviour at their partner against whom they may have no hard feelings. In this situation, no fault divorce makes perfect sense.
The debate around no fault divorce has been circulating for over 20 years. Part 2 of the Family Law Act 1996 tried to provide the solution. This legislation would have abolished all the grounds for divorce listed above, instead providing for a 9 month ‘period for reflection and consideration’ following compulsory information meetings about divorce and marriage counselling. However, after piloting 6 different models of information meetings, the draft provisions were dubbed “unworkable” and were abandoned in 2001.
In October 2015 MP Richard Bacon introduced a motion to the House of Commons to consider The No Fault Divorce Bill and a Commons Library Briefing paper was published only a few weeks ago. The new proposal adds a sixth ‘fact’ on which a joint petition for divorce can be brought with each party separately making a declaration that the marriage or civil partnership has irretrievably broken down without a requirement on either party to satisfy the Court of any other facts. This wouldn’t remove the ability for someone to rely on a fault based reason but it would provide a way forward for those who want to proceed with their divorce in a timely manner and resolve their finances in an amicable way during the 12 month ‘cooling off period’ before the decree absolute is granted.
Sceptics believe that no fault divorce simply makes divorce too easy and that threatens the institution of marriage. They look to Canada where the ability to divorce based on a permanent breakdown of the marriage was introduced as far back as 1968 but Canada then recorded a six fold increase in the number of divorces over the following 2 years. Other sceptics make the moral case for marriage and a lifelong commitment to children who are undoubtedly affected by the divorce of their parents. It is for that reason that previous attempts to find a solution have focused on reconciliation. But arguably by the time someone is seriously considering pursuing divorce it may well be too late to try and save the marriage or civil partnership. The reality is, however, that it is certainly early enough to foster a co-operative approach to the divorce and a good parenting relationship to make what is likely to be a huge period of upheaval for any children easier.
This is where the current law falls short. The need to play the blame game fuels conflict, clouds a constructive look to the future and inevitably costs more. Surely now, when we are embracing change, enjoying the introduction of same sex marriage and are only a matter of months away from the roll out of online divorce, it is the time when we can naturally take this next step forward to ensure that our current divorce law also evolves to reflect the views of the society which it serves.
Kara Swift is an associate at Family Law in Partnership. She advises on all aspects of private family law for a wide range of clients including high net worth individuals and entrepreneurs. Contact Kara at E:firstname.lastname@example.org or T:020 7420 5000