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No fault divorce: where next?

Date:19 OCT 2015
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Knowledge Development Lawyer
On 13 October a 10-minute motion was debated in the House of Commons at the instigation of Conservative MP Richard Bacon. The motion was, 'That leave be given to bring in a Bill to make provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the court of any other facts; and for connected purposes'. The motion passed and there will be a second reading of the No Fault Divorce Bill on 4 December 2015.

The No Fault Divorce Bill has not yet been published but Richard Bacon explained in his speech that it would operate by adding a sixth 'fact' by which irretrievable breakdown could be proved, being both parties declaring irretrievable breakdown, and a 1-year cooling off period before decree absolute is made. Under these proposals, no fault divorce would only be available where divorce was agreed on, but should immediate no-fault divorce also be available on a unilateral basis? Resolution’s  Manifesto for Family Law, published earlier this year, seeks abolition of all fault-based divorce, and outlined a possible procedure requiring a 6-month consideration period after one or both parties give notice of irretrievable breakdown, after which the divorce could be finalised if one or both parties seek that.

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Part 2 of the Family Law Act 1996 would also have abolished all fault grounds; it required attendance at 'information meetings' at which information would be given about divorce and about marriage counselling, and a 9-month 'period for reflection and consideration'. The scheme provided for by the legislation was trialled in pilot areas, but was abandoned in 2001, when it was concluded that it was ineffective in saving marriages, as the information meetings came too late in the marital breakdown process. Those who now advocate no fault divorce tend not to see its purpose as saving marriages; by the time a couple look into the divorce process it is often too late for that, but it may, perhaps, be early enough to advance a constructive and co-operative post-separation relationship by encouraging the parties to look to the future, rather than the past.

While Richard Bacon's Bill would be an important step forward, many will feel that by retaining the option of fault-based divorce it would not go far enough. In particular, if that fact were to have a 1-year cooling off period while the behaviour and adultery facts did not, the risk would surely remain that some would choose a fault-based fact to speed up the process. There would also be a risk that agreeing to divorce on a no fault basis could become a bargaining chip, a concern that would not arise under Resolution's proposals. It could also be argued that retaining fault grounds would fail to send a strong message that the focus of divorce should not be on blame and recrimination but on moving forward on a constructive basis and looking to the future.

The full version of this item will appear in the December 2015 issue of  Family Law.