Family Law

Almost half of all marriages today will end in divorce. Financial freedom, access to education, advances in technology and moves towards gender equality are all factors which have changed our attitudes towards the longevity of marriage.

For many, marriage is no longer a commitment for life, and so divorce is becoming more of a commodity in modern society.

However, family law has arguably failed to keep up with advances in society and changes in our approach towards relationships. Current divorce law is set out in legislation dating back to 1973 and attempts to revise this two decades ago failed.

There is, however, a feeling that the winds are now changing, and progress may finally be made to bring about much-required modernisation of divorce law in England and Wales.

The No Fault Divorce Bill, spearheaded by Richard Bacon MP, received its first reading in Parliament on 13 October 2015. The second reading is scheduled for 11 March 2016 (postponed from 22 January 2016).

Australia has had no fault divorce since 1975. Other countries where no fault divorce is possible include the USA and Spain.

At present, the sole ground for divorce in England and Wales is the irretrievable breakdown of the marriage. This has to be supported by one of five facts. If a couple wants to separate immediately, provided that they have been married for 12 months or more, they can do so on the basis of one party's adultery or unreasonable behaviour. For civil partners wishing to dissolve their partnership, the legal definition of 'adultery' means that this ground is not available, and so the only means to an immediate dissolution is to cite examples of one party's unreasonable behaviour (there are calls for the definition of 'adultery' to be changed, but that is a topic for another post).

Research carried out by Resolution in June 2015 found that over half of all divorce petitions were fault-based (citing unreasonable behaviour or adultery), presumably filed by people who didn't wish to wait 2 years or more to get divorced, or whose other half didn't consent to the divorce. Of those petitions, 27% said that the fault alleged wasn't true but was the easiest option.

The divorce process itself can in theory take as little as 5-6 months. However, it often takes longer because it can take time to agree the split of the family finances and it is often sensible to do this before applying for decree absolute to finalise the divorce.

The proposed amendment to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 would enable couples to send a joint petition to the court, and proceed to decree nisi stage relatively quickly. However, there would be a 12-month 'cooling off' period before decree absolute can be made.

There is widespread support for no-fault divorce within the judiciary, including from the President of the Family Division, Sir James Munby. Family practitioners have also been very vocal in their support for this reform of the law. Resolution's Manifesto for Family Law seeks all fault-based divorce to be abolished and considers a 6-month 'cooling off' period rather than the proposed 12 months.