No fault divorce – associate Carla Ditz assesses the present state of the law and the campaign to alter the unnecessarily acrimonious route to divorce
Unless a couple have been separated for at least two years, they are forced to go down the road of blaming one party for the breakdown of the relationship. The debate regarding a change to the law surrounding fault-based divorce has been awakened and there is a drive from all directions in favour of no fault divorce, including the motion put forward in October by Richard Bacon MP to tackle this political hot potato.
As the House of Commons debates the no fault divorce bill for the second time this week, associate Carla Ditz examines the current law and the weight of opinion for change.
There is only one ground for divorce as set out in the Matrimonial Causes Act 1973, section 1(1): ‘[A] petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably’.
A party must then prove ‘irretrievable breakdown’ by relying on one of five facts as set out in section 1(2) of the Act:
- Unreasonable behaviour;
- Desertion (two years);
- Two years’ separation with consent; and
- Five years’ separation.
The most common ‘fact’ relied upon is ‘unreasonable behaviour’ because, in the absence of the other ‘facts’, the parties would otherwise have to wait two years before petitioning for divorce.
Where unreasonable behaviour is relied on, the petitioner must list reasons or ‘particulars’ as to why the respondent’s behaviour has resulted in the breakdown of the marriage. This is the case even where the parties may have simply drifted apart through no fault of their own.
No fault divorce Bill
On 13 October 2015, Richard Bacon MP introduced the following motion for debate in the House of Commons: ‘That leave be given to bring in a Bill to make provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the court of any other facts; and for connected purposes.’ A second reading of the Bill will take place this Friday, 11th March 2016.
At the heart of the Bill is the addition of a ‘sixth fact’, namely that both parties agree the marriage has irretrievably broken down, followed by a one-year cooling-off period before decree absolute can be made. The crucial point is that the parties must agree but, even then, one could argue that, in relatively straightforward cases, it may in fact be quicker to divorce on the grounds of unreasonable behaviour given the imposition of the one-year cooling-off period.
The motion is, however, in line with current thinking. In its manifesto, family law body Resolution is seeking to abolish fault based divorce altogether, and the Nuffield Foundation is funding a two-year study to investigate whether a change in the law is required.
In April 2014, Sir James Munby, president of the Family Division, spoke out in favour of simplifying the divorce process where both parties consent. He said it is time to consider removing the judge-led element of overseeing a divorce by consent, proposing instead that it is dealt with on an administrative basis, as is the case in many other countries. This mirrors the thinking of former president Sir Nicholas Wall, back in 2012, who considered that the time for allocating blame for the failure of a marriage had now passed. Lady Hale, in April 2015, expressed similar views, having been one of the first proponents of no fault divorce many years ago.
Interestingly, the Family Law Act 1996 provided for no fault divorce, but the relevant part two of that Act (requiring parties to attend ‘information meetings’) was never enacted as it was deemed ‘unworkable’ and ultimately a costs issue.
Arguably, the mere existence of no fault divorce should not alter the numbers of people divorcing, nor should it threaten the institution of marriage. It could, however, promote a less confrontational approach to divorce at a time when emotions are fragile and the temptation to blame is prevalent, potentially hindering constructive dialogue from the outset. Opponents, however, point to the relative ease with which it might become possible to obtain a divorce.
Time after time we advise our clients that the divorce petition is a means to an end and that it has no impact on the overall division of assets. While behaviour particulars can be agreed in advance of issuing a petition, it can still leave a bad taste in the mouth and engenders a sense of blame. Therefore, why not simplify the process and do away with what many see as a senseless and unhelpful procedure? It is time to move on and allow parties to divorce with dignity and focus on the future.
This article was first published in Solicitors Journal on 1st December 2015 Issue: Vol 159 no 45 01-12-15