Law Spot - Getting No Fault Divorce Back on the Agenda

At the national conference of the Family Lawyers Association, “Resolution” last month there was a call for a radical overhaul of the law relating to divorce and in particular for no fault divorce to be back on the agenda.

The key legislation, The Matrimonial Causes Act 1973 is over 35 years old and many would argue the legislation has little relevance to modern families.    Under the current law anyone who does not want to wait two years or more for a divorce has to prove unreasonable behaviour or adultery. As Resolution’s National Chair Nicholas Longford commented :

“This “blame culture” of unreasonable behaviour introduces a degree of discord and unpleasantness into divorce proceedings from the beginning”.

In the mid 1990s the Government previously backed out of plans for divorce reform which would have introduced no fault divorces after one year’s separation and compulsory information meetings.    At the time, whilst there was general support for no fault divorce, there was some concern that the proposed waiting period was inappropriate. In other legal systems the waiting period is short or non-existent. For example, in France parties may divorce after six months by mutual consent and in Australia financial proceedings may be started before divorce proceedings so that the parties can resolve issues of finance, as well as issues involving children, and to think through the consequences before the marriage is dissolved.   However, it is interesting to note that no fault divorce was introduced in many American States more than 20 years ago midst much controversy.   Some States are now seeking to repeal the relevant legislation and revert to a fault based system. 

Religious factors and divorce reform are often interlinked. Countries where religion is central to society may ban divorce altogether or limit it.   It was a sign of our increasingly secular society that the 1973 Matrimonial Causes Act reflected the less central role religion plays in our society today.   However, when the proposed reforms were debated in the mid 1990s it was clear that religion still played a part in many people’s perceptions.   Edward Leigh the MP for Gainsborough and Horncastle said during the course of a debate in the House of Commons that the proposed bill would “advance further down the dangerous road of ending the concept of a Christian state laying down the framework of social life”.   He went on to say “it follows that if a marriage ends, one or both parties are at fault”.   This is a sentiment that many family lawyers (and their clients) would strongly disagree with.

It is abundantly clear that divorce reform remains a political “hot potato”.  

Resolution, following a survey of its members believes that no fault divorce is the best way forward. In particular Resolution proposes that the divorce process should be commenced by one or both parties filing a statement of marital breakdown with a waiting period of six months before either or both parties can file a declaration that the marriage has broken down and the divorce can be finalised.    There would be power to abridge the waiting period in exceptional circumstances.   There would be no requirement for the parties to be “separated” as currently defined with the couple able to continue to live together and, if they wish, attempt to save the marriage up until the point where the final application for divorce is made.   Where the couple have been separated before the statement is filed, the waiting period should be reduced by that separation period – i.e. if the parties have been separated for six months, there would be no waiting period.

It is clear that achieving divorce law reform will not be an easy task with neither the Government nor the opposition wanting to be seen as attacking “family values”.   However, we are lagging behind our neighbours in Europe and other countries in failing to bring our divorce regime into line with the way in which society’s thinking has developed.   Accordingly Resolution hope their proposals will provide a platform from which the challenge of divorce reform can be re-launched. 

• If you would like further information with regard to this article please contact Catherine Walker, Partner and Head of the Family Law Department at Needham & James LLP – Telephone: 0845 620 9501; Email: catherinewalker@needhamandjames.com  

• Catherine is a member of Resolution and a qualified Collaborative Lawyer and a member of the Heart of England Collaborative Family Law Group. She is also a member of the Law Society’s Family Law Panel.

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