Earlier this month Justice Secretary David Gauke announced the Government’s intention to launch a consultation on the introduction of “no-fault” divorce after a sustained campaign from Resolution (whose membership comprises family lawyers and other professionals committed to the constructive resolution of family disputes in a non confrontational environment) and, in light of the high profile Supreme Court judgment in Owens v Owens.
To obtain a decree of divorce in England and Wales you must prove that your marriage has irretrievably broken down and to do so, demonstrate one of five facts. Of these, only two enable an application for divorce to be filed immediately; adultery or unreasonable behaviour. The remaining three rely on periods of separation or desertion.
The Government’s proposal would be to retain the single ground for divorce of irretrievable breakdown but end the need to evidence one of these five facts. The intention, as it seems, would be to seek to end the opportunity for a spouse or civil partner to defend an application and to look to reduce the time that it takes to obtain a final decree.
This is not the first time that no-fault divorce will have made it into statute. The Family Law Act 1996 enabled this providing couples had first taken part in a compulsory information meeting. However, this was dropped by the Labour Government in 1997 after a pilot scheme suggested it would be unworkable.
In the vast majority of cases that I deal with, couples soon acknowledge that their marriage has irretrievably broken down and that divorce is an inevitable next step. To then be told that in order to progress an application for divorce they are required to show fault (or blame) often comes as a surprise as it brings with it unnecessary acrimony and conflict. Having to assign blame only serves to exacerbate an already stressful process.
The focus should be centred on the arrangements they need to make for any children and secure a fair, reasonable and workable financial settlement. This is often best achieved away from Court by adopting a mediated or collaborative approach. Then, having negotiated an agreement, recourse can be made at the Court with a no-fault divorce and Financial Remedies Order secured by consent.
Hopefully this time, the Government will heed the calls to overhaul the current system for divorce, to bring the law into the 21stcentury and remove all unnecessary conflict.