Is no-fault divorce any nearer?
Last October, the House of Commons Library released a briefing paper dealing with ‘no-fault’ divorce. It chronicles all the many recent calls for reform, including the report of the Nuffield Foundation research, led by Professor Liz Trinder of Exeter University, which summarises the current situation in no uncertain terms: “The failure to implement the Family Law Act 1996 has left divorce law in England and Wales untouched since 1973, and out of step with similar jurisdictions in Europe and North America in its heavy reliance on ‘fault’ as a basis for divorce”.
In the intervening years, legislation has been occasionally presented to Parliament as a Private Member’s Bill or under the Ten-Minute Rule. In 2016, MP Richard Bacon introduced a No-Fault Divorce Bill. However, these attempts have either been ‘talked out’ or failed to rise to the top of the Westminster agenda.
Successive governments have said that they would study the evidence for divorce law reform, but will not be rushed into reaching any conclusions, and that any reforms would need to be part of a wider reform of the family justice system.
Professor Trinder’s report recommends removing fault entirely from divorce law and civil partnership dissolution. She concludes that reform is long overdue, stating: “In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down. That should be a private family matter, properly determined by the parties, not the state”.
Those who argue against reform often take the view that the institution of marriage should be supported at all costs. They foresee the risk of the divorce rate increasing if divorce is made easier, and have concerns about the negative impacts this could have on families. Advocates for reform consider that removing the need to find fault could help reduce conflict, making for a more civilised approach to resolving family matters, that can only be of benefit to all parties concerned.
For now, it would seem that the closest option we have to a ‘no-fault’ divorce requires the couple to live apart for two years, to demonstrate that their marriage has irretrievably broken down. Those couples who want to divorce without this delay can only do so either by citing the adultery of their spouse, or by detailing particulars of their spouse’s unreasonable behaviour. To those affected by it, this fault-finding process can seem no more than a destructive legal ritual without any obvious benefits for the parties or the state.
Moving into the digital age
Amongst their recommendations, the researchers suggested that reducing separation periods to one year with consent and two years without would be a better approach. Their preferred solution was, however, the idea of a digital notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably after a minimum period of six months.
With over 100,000 couples divorcing each year, many believe that it’s high time that Ministers demonstrated the political will necessary to bring about much-needed change in the UK’s divorce laws.
Joyti Henchie, Partner and Head of Family, comments: “The concept of having to show fault and apportion blame often causes unnecessary acrimony in what otherwise could be an amicable separation. The need to make accusations and provide details can only serve to inflame an already sensitive and difficult situation”.
Here to help
Our Family team are on hand to answer any questions you may have. To arrange a confidential discussion please call us on 0330 221 8855, or contact us online.
House of Commons briefing paper
Professor Liz Trinder’s findings
Resolution Foundation – ‘no fault’ divorce