The current law in England & Wales does not enable a married couple to get divorced without one of them blaming the other, or having to wait until they have been separated for at least two years. If a couple have been separated for less than two years and wish to get divorced one of them must make allegations that the other has either committed adultery or behaved unreasonably which has caused the marriage to come to an end.
There have, on several occasions, been proposals to change the divorce process by introducing ‘no fault divorce’.
It is thought that a no fault divorce is likely to reduce tensions and hostility between the parties which can arise if one has to blame the other for the breakdown of the marriage. Reducing animosity in divorce proceedings can be very important to preserve the dignity of the parties, to make it quicker and more cost effective to resolve financial issues and, above all else, to keep a cordial relationship between parties, particularly where children are involved.
The Family Law Act 1996 sought to simplify the divorce process by introducing the ‘no fault’ divorce in England and Wales, with the intention that couples who agreed that their marriage had broken down could file a Divorce Petition without the need to place the blame on either one of them. Unfortunately the concept of no fault divorce was never implemented and continues to be raised as an area of law which requires reform.
In 2015 Richard Bacon MP for South Norfolk introduced ‘The No Fault Divorce Bill (HC Bill 77) as a Private Members’ Bill. The Bill proposed that where couples are in agreement about Divorce/Civil Partnership Dissolution and wished to proceed on the grounds of no fault, they could sign a document confirming their consent. The Bill did, however, propose a 12 month delay in between granting Decree Nisi and Decree Absolute to allow the couple a ‘cooling off’ period so that they had a period of time to reflect on whether they wanted a Divorce/Civil Partnership Dissolution. The Bill did not get a second reading, however it has again highlighted the need for reform in this area of law.
Previous attempts to pass reform on the current divorce law have also failed because the Government at the time perceived no fault divorce reforms as encouraging couples to separate and in contradiction to the principles as set out in Part 1 of the Family Law Act, namely ‘that the institution of marriage is to be supported; and that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps…to save the marriage’.
Recently, Lord Nicholas Wilson, Justice of the Supreme Court, gave an interview on BBC Radio 4 during which he admitted that he, and many other Judges, were disappointed that the Family Law Act 1996 failed to eliminate fault based divorce.
Resolution - an organisation of 6,500 Family Lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters is campaigning for the reform of the divorce procedure and specifically to remove the need for blame from divorce which can ultimately cause conflict.
It is Resolution’s proposal that where a marriage has broken down, either one, or both partners can give notice that the marriage has broken down. The divorce process would continue as normal and after a period of 6 months if either or both partners agree the marriage has broken down they can apply for Decree Absolute.
A reform in this area of law would afford couples the opportunity to end their marriage without the need to apportion blame, which will ultimately reduce distress and conflict, and hopefully encourage parties to conduct their separation in an amicable and civil manner.
Our Family Team are all members of Resolution and commit to resolving family law disputes in a non-confrontational manner. If you have any questions on anything covered in this article or would like advice regarding Divorce or Civil Partnership Dissolution, please don't hesitate to contact one of the team on 01603 610911.