No Fault Divorce – A Welcome Addition?21/04/2016
With the recognition that nearly 50% of all marriages will at some point end in divorce, it is little wonder that the family law system has begun to look at ways in which the process can be made more efficient, particularly where the split is not seen as acrimonious. It could be argued that the divorce process in the UK has traditionally encouraged acrimony, even where there wasn’t any previously. As a result, the legislation that dates back to the early 1970s is seen as outdated and not in keeping with society based changes.
Forcing fault based divorce where there is no fault can unnecessary animosity.
The need to review and revisit how family law operates has led to the recent initiative to establish the concept of the No Fault Divorce, which was the central theme for the No Fault Divorce Bill brought forward by Richard Bacon MP. The second reading of this Bill is now scheduled for May 2016, with the aim of forwarding the proposition of the No Fault Divorce in the UK, something which has been available in Australia, the USA and Spain for some years.
As it currently stands, the only reason that a divorce can be granted in England and Wales is due to the ‘irretrievable breakdown of the marriage’ which could be indicated by one of five factual situations. Prior to the reading of this Bill, research completed by Resolution in mid 2015 showed that , in a bid to expedite divorce, more than half of all petitions were started on a fault based reason, such as adultery. In fact, the very existence of an organisation such as Resolution shows the general movement towards encouraging collaborative family law and encouraging those who are going through divorce to look at whether the split can be amicable. With over 6,500 members, Resolution is a key indicator that the notion has been present for some time.
Without there being a fault based element, the parties would have to wait two years for divorce. As part of the research, 27% stated that they did not genuinely agree with the fault based approach, but that it offered the quickest divorce, so no argument was presented. This would seem to be a false scenario and again a strong argument towards ensuring that there is the availability of a No Fault Divorce within the shorter time scales that would currently require someone to ‘take the blame’.
Amendments to the Matrimonial Causes Act to include a no fault divorce option.
Under the new provisions, there would be an amendment to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004, which would allow couples to submit a petition to the court, jointly, stating that they wish to divorce through no fault on either party. This would enable the parties to proceed to the decree nisi stage reasonably quickly, with just the 12-month cooling off period then required, before entering the decree absolute stage. Of course the 12 month cooling off will cause delay for some, however it does potentially offer a finite period of time albeit not instantaneous solution.
It would seem entirely logical for this concept of the No Fault Divorce to be incorporated into law to reflect the changing position within society and the desire to offer an effective method of divorce that does not require blame to be central to the petition.
The second reading of this Bill has now been delayed until mid 2016, but those supporting the Bill are optimistic that this refreshing and appropriate change will become a viable option for couples looking to split amicably, in the very near future.
For more information on the current five factual situations which indicate the ‘irretrievable breakdown of the marriage’ visit our Divorce Advice section.