10 April 2019 | Firm news | Article by Adrienne Donneky
Adrienne Donneky, the Head of Family Law at Hugh James, considers the proposed introduction of no-fault divorce.
On their wedding day, very few people’s minds are on divorce. However for around 20% of couples, that is the sad reality, and the process of divorce only exacerbates the emotional stress. At present if separating couples want to divorce without waiting two years (or five if the other does not consent) they must submit a petition to the Court detailing that the other party is at fault. This position is out of step with legislation governing other family proceedings, which place an emphasis upon conciliation and mediation.
As the law currently stands, family law practitioners are in a peculiar difficulty; ensuring that allegations of unreasonable behaviour (upon which the vast majority of petitions are made) are strong enough to allow the petition to proceed, but not so strong as to cause undue hurt and spark conflict between the parties. The recent case of Owens v Owens, where the Court ruled a woman must remain married to a husband she wished to divorce, showed only too well that this balance is challenging to strike.
The primary argument against no fault divorce to date has been the contention that it will de-value marriage. However in my experience, people do not take the decision to divorce lightly and do so irrespective of what the law dictates. The vast majority of people are unaware of the intricacies of divorce law and by the time they come to see me, more often than not, they have agonised over their decision, and have resolved that divorce is the only solution. Further, recent research by the Nuffield Foundation shows that in countries where no fault divorce has been introduced, divorce rates have not increased.
Following years of diligent campaigning by groups such as Resolution, reform is finally on the horizon. The Justice Secretary confirmed this month that after a consultation in which the responses were ‘overwhelmingly in support’ for no fault divorce, legislation for no-fault divorce will be introduced as soon as parliamentary time becomes available. Following the proposed reform, a couple would only need to notify the Court that their marriage has broken down. Couples could give notice jointly, and one person would no longer have the ability to contest the divorce. This change should simplify current practices and should be fairly easy for solicitors to implement.
No fault divorce will allow a spouse to end their marriage without any person being at fault. The hope is that when spouses do not have to apportion blame, the acrimony of divorce is removed and agreements regarding finances and children are easier to reach.
As family lawyers who work with clients navigating divorce every day, we at Hugh James wholeheartedly welcome this change. The law should not entrap an individual in a marriage which they long to escape, and the law should not unnecessarily worsen what is by its very nature a sad occasion. Clients often struggle to comprehend why the Court cares about Mr Jones’ habit of drinking too much, or that Mrs Jones’ has had an affair at the stage of divorce, but consider these factors irrelevant when it comes to finances. This change should allow clients to keep their grievances to themselves, and behave respectfully and kindly towards each other, whilst working towards building their respective lives.