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'No Fault Divorce?' by Tony Roe.
11 April 2009

Do you rely on a 30-odd year old vehicle? Would you want to? If you are divorcing in England & Wales, that’s what you have to depend on.

Divorce & financial resolution is governed by the Matrimonial Causes Act 1973. There is one ground, irretrievable breakdown of marriage, and this is established in one of five ways, or ‘facts’. Three of these depend on the couple being apart for between two and five years: desertion, two years’ separation with consent (to the decree being granted) and five years’ separation. The other two depend on fault: behaviour (sometimes known, albeit incorrectly, as ‘unreasonable behaviour’) or adultery.

Current figures

For all divorces granted to one or other spouse in 2007, behaviour was the most common factor relied upon in a divorce petition, whether filed by husband or the wife. 33% of wives relied on behaviour and 54% of husbands. There were 144,220 divorces in 2007. These divorces involved 128,534 children. 68% of these divorces were granted to the wife.

Current procedure

Under current law anyone not wanting to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of their husband or wife. This ‘blame culture’ of unreasonable behaviour introduces a degree of discord and unpleasantness into divorce proceedings from the outset.

Recent History

As long ago as 1988, The Law Commission looked at improving the family justice system. The Family Law Act 1996 was intended to provide a total overhaul of divorce law and to introduce ‘no fault divorce’ over a process of time but its relevant parts were never implemented.

Proposals for Change: Resolution

Resolution was established 26 years ago and its 5500 members have pioneered a non-adversarial approach to family law. Resolution’s members undertake to abide by a code of practice which promotes a constructive approach to family law aimed at minimising conflict. At its national conference in Bristol on 20 to 22 March 2009, Resolution called on the government to help take the blame out of divorce and separation by introducing no-fault divorce.

Resolution’s proposals reflect the principles of the 1996 Act that: the institution of marriage is to be supported; where the marriage has broken down, the parties should be encouraged to take all practicable steps, whether by counselling or otherwise, to save it; where the marriage has irretrievably broken down, and is being brought to an end, that should be with minimum distress to the parties and the children. The aim should be to deal with issues to promote as good a continuing relationship between the parties and the children as possible.

‘No fault divorce’ is supported by Resolution but on a managed basis. This would involve a statement of marital breakdown with a waiting period of six months before either or both parties can file a declaration that the marriage has broken down and the divorce concluded. This could be shortened in exceptional cases.

Separation

Many couples, for financial reasons, remain in the same home even though the marriage is long over. They may be concerned that their lives are ‘on hold’ or that it would somehow prevent them getting a divorce, which is rarely the case in ‘fault based’ cases, although depends on the circumstances. Resolution’s proposals would enable the couple to continue to live together and, if they wished, attempt to save the marriage, until the application for the final divorce order is made.

Divorce Finances

Currently the court has no power to make interim capital orders. The matrimonial law (the 1973 Act) only permits orders for sale, transfer of property interests, lump sum and pension sharing at the conclusion of divorce and financial proceedings, if the couple do not agree. The only interim relief is spousal maintenance, or periodical payments. This compounds the problem for a spouse wanting to move out and move on, buying a new home for themselves at the earliest opportunity.

The Law Commission is undertaking a review of pre-nuptial agreements this autumn, at the government’s request. Why stop there? Why not review no fault divorce and financial arrangements on marital breakdown too?

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