No fault divorce – time for change, no more conflict

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There has been much discussion over the past few years about the need for divorce law and procedure to be updated in line with our changing times. Resolution and some senior members of the Judiciary, have called for the introduction of no-fault divorce.

Currently, parties in a divorce have to show that their marriage has broken down irretrievably, and they must choose one or more of five facts to support this – adultery, unreasonable behaviour, desertion, two years separation with mutual consent and five years separation.

Research carried out by YouGov for Resolution published in June 2015 found that 52% of divorce petitions were fault based, yet 27% of couples citing blame said the allegations of blame wasn't true, yet it was the easiest option.

A divorce can be akin to bereavement, and then when parties have to go through the the divorce process itself with one person blaming the other on the Court papers, this can increase conflict and emotional distress exponentially, before the process has even really begun.

Part 2 of the Family Law Act 1996 would have introduced no-fault divorce, with the emphasis on the parties attending information meetings and considering reconciliation where possible. However, in 2001, the Government concluded that the provisions were 'unworkable'. The provisions in Part 2 were repealed. In 2015 Richard Bacon MP introduced a Bill supporting the introduction of no-fault divorce, but the Bill did not proceed any further.

Resistance remains against making divorce 'easier' as it is said that the institution of marriage should be supported, and it will lead to a higher divorce rate.

However, when we consider reality, most couples contemplating divorce are stuck between a rock and a hard place. Do they point the finger at the other just to get a divorce and risk alienating them? Or do they live in limbo for two years not being able to have closure on their financial settlement and risk further insecurity and conflict? When there are children involved too, it only prolongs the uncertainty for them.

As a family lawyer adopting a non-confrontational approach, I consider that a 'no-fault' divorce option cannot come too soon. The way the case starts can dictate the direction in which it progresses. If parties are disagreeing at the beginning, it does not bode well for a quick and amicable settlement. Costs can also escalate unnecessarily.

Life goes on post divorce proceedings, often with couples continuing to co-parent their children. If divorcing couples can have the ability to limit the damage to an already broken relationship, then the significance of this cannot be underestimated.

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