Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
The need for proportionality and the ‘Covid impact’
Simon Wilkinson, Parklane PlowdenThe Covid-19 pandemic has infiltrated every aspect of our lives. Within the courts and tribunals service there has been a plethora of guidance since March 2020 which...
Local authority input into private law proceedings, part II
Mani Singh Basi, Barrister, 4 Paper BuildingsLucy Logan Green, Barrister, 4 Paper BuildingThis article considers the interplay between private and public law proceedings, focusing on the law relating...
Time for change (II)
Lisa Parkinson, Family mediation trainer, co-founder and a Vice-President of the Family Mediators AssociationThe family law community needs to respond to the urgent call for change from the...
How Can I Wed Thee? – Let Me Change the Ways: the Law Commission’s Consultation Paper on ‘Weddings’ Law (2020)
Professor Chris Barton, A Vice-President of the Family Mediators Association, Academic Door Tenant, Regent Chambers, Stoke-on-TrentThis article considers the Paper's 91 Consultation Questions...
Consultation on the proposed transfer of the assessment of all civil legal aid bills of costs to the Legal Aid Agency
The Ministry of Justice has launched a consultation on the proposed transfer from Her Majesty's Courts and Tribunals Service to the Legal Aid Agency of the assessment of all civil legal aid bills of...
View all articles
Authors

No-fault divorce: the future of divorce law?

Sep 29, 2018, 21:51 PM
Family Law, divorce, blame, no fault divorce, Sir James Munby, House of Commons Library, Nuffield Foundation, Resolution
The House of Commons Library released its briefing paper dealing with 'no-fault divorce' on 17 October 2017. The paper provides a helpful snapshot of the position currently in England & Wales in relation to divorce proceedings, together with a chronology of historic legislation and government schemes.
Slug : no-fault-divorce-the-future-of-divorce-law
Meta Title : No-fault divorce: the future of divorce law
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Nov 16, 2017, 10:25 AM
Article ID : 116157
The House of Commons Library released its briefing paper dealing with 'no-fault divorce' on 17 October 2017. The paper provides a helpful snapshot of the position currently in England & Wales in relation to divorce proceedings, together with a chronology of historic legislation and government schemes. It highlights that the most recent attempt to legislate for 'no-fault divorce' was within Pt 2 of the Family Law Act 1996, which was repealed on the basis that the provisions within Pt 2 were 'unworkable'.  Notwithstanding this conclusion, the Government indicated in January 2001 that it would remain committed to exploring the introduction of no-fault divorce however we are yet to see that commitment materialise into legislated change.

For now, it would seem that we are stuck with the closest option to 'no-fault divorce' being when a couple, by mutual consent, confirm that they have lived apart for two years thus demonstrating that their marriage has broken down irretrievably. This means that those couples who are seeking to divorce without delay can only do so by either citing the adultery of their spouse, or by detailing particulars of their spouse’s unreasonable behaviour.

The President of the Family Division, Sir James Munby, acknowledged following the Court of Appeal decision in Owens v Owens [2017] EWCA Civ 182:

'We have, and have for many years had, divorce by consent, not merely in accordance with s 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of s 1(2)(b).'

The president’s comments are in recognition of the fact that, despite there being no legal vehicle to divorce immediately upon a 'no-blame' basis, parties are able to manipulate the process to their advantage by agreeing particulars of behaviour (thus colluding) during the process, to ensure that the threshold required to entitle the parties to divorce is met. However, this assumes a level of cooperation between parties which is often not present, and thus a petition issued on the basis of one party’s unreasonable behaviour is more likely to incite heightened acrimony between divorcing couples which in turn can set the tone for the remainder of the proceedings.

Many practitioners now argue that acrimony between parties within divorce and financial proceedings could be reduced if the process were to be initiated via more neutral means. This argument is supported by the report published on 30 October 2017 by the Nuffield Foundation. The report ultimately calls for substantive law reform, and for the removal of 'fault' within the divorce process, so that divorce is based solely upon an administrative process requiring notification, and later confirmation, by one or both spouses that the marriage has broken down.

The House of Commons library briefing paper cites the common arguments raised in opposing the introduction of no-fault divorce, those being that:

  • the institution of marriage should be supported;
  • there would be a risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and
  • the negative impact of family breakdown.

However, one of the counter-arguments must be that there should be acknowledgement of an individual's entitlement to autonomy in deciding whether or not they wish to remain married to their spouse. Indeed, the Nuffield Foundation report comments: 

'In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down. That should be a private family matter, properly determined by the parties, not the state.'

The stance taken within the Nuffield Foundation Report has been championed by Resolution, the national organisation of family lawyers committed to non-confrontational divorce, for some time, citing that parties should not be required to go through 'this blame charade to bring their relationship to a dignified conclusion and move on with their lives'.

The House of Commons Library briefing paper highlights that the government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.

We wait with baited breath.

Categories :
  • Articles
Tags :
divorce
Authors
Product Bucket : Divorce
Load more comments
Comment by from