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'No Fault' Divorce - Reason to be Hopeful? By Andrew Dowie 21/11/17

One of the frustrations that my divorce clients often have is being unable to commence divorce proceedings on a 'no fault' basis without being separated for at least 2 years. I am regularly asked for examples of 'unreasonable behaviour' by clients who have separated on relatively amicable terms but who don't wish to wait for 2 years before commencing divorce proceedings, in the hope that they can find suitable wording that will cause minimal upset or conflict. I have generally advised that a change to the process whereby a new 'no fault' divorce may be introduced, is likely to happen but not in the foreseeable future.

This may be about to change.

There is now considerable pressure, led by Resolution, an association of over 5500 family lawyers who believe in a constructive, non-confrontational approach to family law matters, to remove the apportionment of blame from the legal process. They believe that a divorce should be finalised where one or both of the parties to a marriage give notice of their decision, supported by information and with the opportunity to explore other avenues, that their marriage has broken down irretrievably and one or both of them are still of that view after six months. 

Currently, in England and Wales the only ground for divorce is that the marriage has broken down irretrievably. This can be established in a number of different ways, some of which apportion blame for the end of the marriage. It is not possible to end a marriage and to get a divorce without fault being alleged unless a couple have been separated for at least two years so if a couple want to get on with sorting out the financial consequences to achieve certainty, alleging fault is the only way to do so without putting their lives on hold for two years. Most divorces are therefore granted on the basis of one partner’s adultery or behaviour - often causing further upset to all concerned, including any children of the marriage. Even couples who at the outset do not particularly want to apportion blame may be pushed by the law in a direction they do not want to take. This feels outdated and overdue for change.

Resolution are putting forward the following alternatives:-

i)    The ground for divorce should remain the irretrievable breakdown of the marriage.

ii)   The divorce process should be commenced by one or both parties filing a statement of marital breakdown (without fault or separation being alleged). Following this there should be a waiting period of six months to give a couple time to think about whether they are making the right decision, without causing unnecessary hardship and delay before the divorce can become final. 

iii)  The divorce should be made final at the end of six months if either or both parties file a declaration confirming their view that the marriage has broken down irretrievably. 

iv)  The waiting period would be reduced by any time prior to the filing of the statement of marital breakdown during which the couple are living apart (i.e. living in separate households even if under the same roof). For example, if they had already been separated for six months, there would be no waiting period. 

Resolution’s call for no fault divorce is supported by, amongst others, the most senior family judge in the country; the deputy president of the Supreme Court; the Family Mediation Task Force, and Relate. The topic was also the focus of a recent House of Commons Library briefing paper. 

The current divorce law is now nearly 50 years old. Its apparent rationale and operation are at odds with a family justice system that seeks to minimise the consequences of relationship breakdown for both adults and children.

Whilst it is fair to say that Resolution have been pushing for such changes since 1996, there is now real momentum and the calls for the introduction of no-fault divorce keep getting louder. The latest voice to add to those calls has come in the form of a report launched in Parliament on 30/10/17 from Professor Liz Trinder at the University of Exeter, summarising the findings from a study that explored how the current law regarding divorce and civil partnership dissolution operates in practice. 

I am tentatively optimistic that I will be able to advise my clients of an effective date for positive change to the law before too long.

Andrew Dowie is a Partner at Steel and Shamash who specialises in Family Law, and is a member of Resolution.