Fault-based Divorce: Blame it on the Law
As a Resolution Accredited Solicitor, with 15 years’ experience in practice, I can firmly state that many more than just a handful of Clients have asked me if they can simply divorce their spouse because the two of them agree that it is, sadly, over, and neither one is to blame. I am certain my fellow family lawyers would say the same of their Clients. The “it’s just one of those things” and “we would like to salvage some dignity”- divorce continues to be in much demand.
However, the 1973 Matrimonial Causes Act insists that a spouse who wishes to start their divorce before there has been a period of two year’s separation, must find fault with the other spouse, and cite that fault, in the Petition, in some detail. As trained family lawyers, we appreciate that a balance must be struck with regards to preserving the sanctity of marriage, whilst enabling couples to dissolve their legal ties to one another.
We all understand the underlying message that marriage should not be entered into or abandoned lightly, and divorce is serious and should be avoided if at all possible. But, in this area the law is a complete anathema to Resolution’s approach to family matters. As a trained Family Solicitor, I strive to encourage an atmosphere in which non-acrimonious exchanges can take place, and conciliation has the opportunity to flourish. The law’s requirement for blame to be established not only increases the stress and pressure of the already sensitive proceedings, but also makes little sense when considering that the actual basis of the divorce rarely makes any difference to the financial settlement or the arrangements concerning the children. It is essentially a case of getting the divorce through the Court door so that all matters can then be formalised and finalised.
It is of course more complex than this. For many, divorce is a means to an end only, making a new life possible. For others, it is an unwanted process which one would like to emerge from relatively unscathed.
The most senior family judge in England and Wales, Sir James Munby, has said it is time to consider removing the need for a judge to oversee “divorce by consent”. Sir James Munby said “no-fault” divorce could then be handled by a registrar as a purely administrative matter.
The Family Law Act 1996 made provision for no-fault divorce to be introduced in England and Wales, but following opposition to the idea, it was scrapped by the government.
… proposes a new divorce procedure to remove the apportionment of blame from the legal process. 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 and one or both of them are still of that view after six months.
The specific proposals, which apply equally to the dissolution of a civil partnership, are:
- The underlying principles in Part I of the Family Law Act 1996, which include the support of marriage and bringing a marriage that is over to an end with minimum distress to the parties and children affected, should be retained.
- The ground for divorce should remain the irretrievable breakdown of the marriage.
- 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. 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.
- 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.
- There should be power to shorten the waiting period for an exceptional reason.
- A divorcing couple should be able to continue to live in the same household without the need for artificial living arrangements, and, if they wish, attempt to save the marriage during the waiting period for a divorce.
- Before divorce, couples should be helped to understand the options for facilitating reconciliation or dealing with their situation and provided with locally targeted information about marriage counseling/guidance, mediation, collaborative law, parenting plans and classes (for example, information on Resolution’s Parenting After Parting programme) and other local services that can assist them and their children, together with information on legal principles about children’s and financial issues.
- There should be no new requirement to settle finances before the divorce is finalised (Decree Absolute), but there should be power to hold up the divorce for good financial reason, for example, if a husband or wife would suffer severe financial hardship. This would avoid the use of the finalisation of a divorce as a bargaining tool in financial applications and allow a couple to move on for the benefit of both themselves and their children.
These proposals are dramatic and will not sit comfortably with some, especially those who wish to work on, and attempt to save their marriage, despite, perhaps, the other party’s clear or less than clear lack of commitment to that goal. The above may not be the exact framework which is achieved ultimately, but some change is likely to happen before the roaring 2020s are upon us.
In the meantime, please do contact me and my colleagues on 01903 229938 as to the ways in which you and your spouse/partner can bring about a calmer and more considerate divorce/dissolution, within the existing parameters of the law. We are all accredited Resolution lawyers, as well as being the only Worthing law firm able to offer both of the alternative approaches of Collaborative and Mediation. We look forward to helping you and working with you.
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.