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ISSUES: Marriage
Chapter 2: Divorce
Divorce can be nobody’s fault – the law
should do more to recognise that
An article from
The Conversation
.
By Sharon Thompson, Lecturer in Law, Cardiff University
T
he law affecting families in
England and Wales is changing.
Since legal aid was withdrawn
in family law cases by legislation in
2012, resolving disputes amicably
on divorce has never been more
important. People are having to
navigate a complex legal framework
without legal support at the most
emotionally fraught time of their lives.
But the law itself is failing divorcing
couples by making compromise more
difficult. It effectively encourages
spouses to attribute blame even when
no-one is at fault. Family lawyers and
leading judges are now calling for
legislative reform.
Since the 1970s, the sole ground
for divorce in England and Wales
is irretrievable breakdown of the
marriage. This is established on proof
of one of five facts: adultery, behaviour,
desertion, two years separation with
consent or five years separation
without consent. The latter two facts
require no fault but do mean years
of waiting – and if a couple mutually
wish to divorce there may be various
emotional and economic reasons why
they cannot wait this long.
So, although couples are not required
to attribute blame to establish
irretrievable breakdown, they are often
compelled to do so if they want to end
their marriage quickly. For instance,
if one can prove that their spouse
is guilty of adultery – an option not
available to same-sex married couples
– or behaviour that is unreasonable,
the divorce can be finalised in less than
six months. All this means that divorce
is a much quicker process when there
is someone to blame.
It is therefore unsurprising that the
latest available statistics indicate that
the most common reason spouses
divorce is unreasonable behaviour.
A YouGov survey commissioned in
2015 by Resolution, an organisation
of family lawyers, found that 27%
of
couples
proved
irretrievable
breakdown on the basis of fault
because it was quicker and easier,
admitting that neither spouse was to
blame for the separation.
Fabricating fault
One of the most significant reasons
spouses turn to apportioning blame
is that their property and finances
cannot be divided until the divorce
is finalised. For individuals who had
previously been financially dependent
on their ex-partner, a delay of a couple
of years in financial relief could be
disastrous. One way of avoiding this
is to blame the other party for the
marriage breakdown, even if such
allegations are untrue.
This is problematic to say the least.
Spouses may ruin an otherwise
amicable separation by having to
decide whose name will be recorded
on the divorce petition as being
responsible for the end of themarriage.
Worse still, this process is unnecessary,
as allegations of fault in a divorce
petition have no bearing on how
the marital assets are subsequently
divided.
Research has shown that this emphasis
on fault increases animosity during
relationship
breakdown,
because
it encourages family disputes to be
resolved in an adversarial way. The
consequences of this are serious.
Attributing blame can lead to
bitterness and hostility, reducing
the chance of reconciliation and
prolonging the resolution of issues
such as child arrangements and
financial redistribution. It also costs
more and puts pressure on court
resources.
Not only is this detrimental to any
children involved, but an emphasis
on apportioning fault in proceedings
could
also
jeopardise
couples’
chances for successful mediation. It
has consistently been proven that
mediation is less likely to be successful
in high-conflict situations, yet fault-
based divorce brings conflict to the
fore. For the increasing numbers of
people representing themselves in
court, a fault-driven divorce process
further aggravates an already volatile
situation. This can be very damaging
when there is no solicitor present to
alleviate tensions.
Appetite for reform
Reform that eliminates fault from
divorce law would not only encourage
a non-adversarial process, but as
president of the Family Division James
Munby put it, more “intellectual
honesty” would be brought to the
divorce process because spouses
would not have to make fictitious
accusations
of
unreasonable
behaviour against each other.
Calls for reform have been around
for 20 years. The Law Commission
recommended reform in 1990. But,
provisions seeking to eliminate fault
on divorce in the Family Law Act 1996
were never introduced and were
repealed by the Children and Families
Act 2014.
Now, amid recent developments such
as the potential introduction of online
divorce next year, reform may finally
be imminent.
On 30 November, more than 150 family
law practitioners from Resolution
lobbied parliament to make divorce a
“kinder process” by reducing the wait
in cases where both spouses consent
and no-one is deemed at fault from
two years of separation to six months.
There is also public appetite for no-
fault divorce.
Those opposed to reform are
concerned that it would mean a huge
surge in the number of divorces, and
that this, in turn, would destabilise the
family unit. Yet, there is no research
to support this and the divorce rate
is currently at its lowest since the
1970s. In Scotland, where couples
