“No Fault Divorce” At Last?

No fault divorce by Tamsin Caine

You may have read in the news or on Twitter about the campaign by various senior figures in the field of family law to persuade the government to change the law to bring in “no fault divorce”, but what does it mean?

Divorcing now

At the moment, if you are divorcing but haven’t been separated for 2 years, one of you has to accuse the other of adultery, unreasonable behaviour or desertion. If you have been separated for 2 years no accusation is needed but both parties have to agree. After 5 years of separation, it is no longer a requirement for both parties to agree.

Why is this news now?

In the recent case of Tini Owens, who had been separated from her husband for 2 years, he did not wish to divorce and objected. In this case, the judge felt that there was not sufficient evidence provided to show that the marriage had broken down irretrievably. Ms Owens will now have to wait for 5 years of separation before she can divorce Mr Owens. Ms Owens appealed the decision but the judge upheld the original ruling. It is extremely rare for this to happen but it has reopened the debate on no fault divorce.

What are the arguments for no fault divorce?

I am an advocate of trying to divorce amicably, particularly where there are children involved. I feel that where this is possible the children can continue to be jointly parented. Parents can work together to make decisions involving the children. They can often benefit from more flexible arrangements to see both parents. I feel it is important that children can have relationships with both parents after divorce.

However, remaining amicable, relies on being able to be on good terms. If one parent must accuse the other of adultery or unreasonable behaviour with a requirement to evidence relevant incidents, it becomes extremely difficult to maintain a good relationship. No fault divorce will remove the need to make accusations, allowing both parties to move forward with their lives. If one party disagrees with the divorce, there will be a requirement to provide evidence but in this instance, an amicable divorce is unlikely anyway.

What are the arguments against no fault divorce?

Supporting the institution of marriage, the risk of the divorce rate increasing and the negative impact of family breakdown are the three main reasons for opposition to no fault divorce. The figures support the fact that more couples are opting to cohabit instead of getting married. This will be the situation whether divorce is allowed to continue in the current form or no fault divorce is introduced. The negative impact of family breakdown will be considerably less if the couple are allowed to divorce without accusation.

What happens now?

Within the last week, the government have launched a consultation on no fault divorce. The justice secretary has been quoted as saying that the arguments in favour of no fault divorce are strong and that the current system creates unnecessary antagonism. The changes are strongly supported by the family law organisation, Resolution.

We will watch this story with interest and hope to see the changes to the law in the very near future.