By Lucy Thacker
There is a common misconception today, possibly as a result of American films and TV shows, that one can divorce solely on the basis of an irretrievable breakdown of the marriage. However, that’s not the case as we still have a ‘fault’ based divorce system.
To divorce in England & Wales, one has to show not only that there has been an irretrievable breakdown of marriage but rely upon one of 5 facts. Two are fault based facts (adultery and unreasonable behaviour) and the others are based on separation (2 years with consent, 5 years or desertion).The most commonly used is unreasonable behaviour. This means that the applicant has to rely on a number of statements of behaviour of how their ex-partner is at ‘fault’.
The Nuffield Foundation released a study recently which found that there is a reliance on unreasonable behaviour, and that people tend to exaggerate claims to secure divorce more quickly. This is because there is no set criteria on what one has to write to constitute unreasonable behaviour. The bar is considered to be low, but no one appreciates how low it is. Lawyers may file a petition with stronger and more damaging allegations to make sure the petition is accepted. This means the divorce petition isn’t necessarily an accurate reflection of the breakdown of the marriage and who was at ‘fault’.
In the study they undertook a national opinion survey and it was found that 43% of people who were found at ‘fault’ disagreed with the reasons set out on the divorce petition. It is commonplace for the Respondent to a divorce petition to allow the divorce to proceed on the facts stated whilst reserving their position to respond to the allegations within the context of other matters to be considered if necessary, such as finances or children.
The research demonstrates that the current system of fault-based divorces increases conflict for couples who are separating and their children. It increases dishonesty, exaggeration and undermines the aims of the Family Justice System. It also highlights how out of date the divorce law is in England & Wales, when compared to most other European countries.
The recommendation of the study is to introduce a ‘no fault’ divorce. This would mean fault is completely removed from the system, and a couple could divorce without ‘pointing a finger’ and could get a divorce after a minimum cooling off period of 6 months.
Resolution a family law organisation which promotes a constructive approach to resolving family law matters is calling for improvements to the family law system. A ‘no fault’ divorce is something Resolution has been championing for years, lobbying the government to bring about change in the divorce system, with support from the President of the Supreme Court, President of the Family Division, the Chair of Marriage Foundation and the Family Mediation Task Force.
Those who oppose a no-fault divorce, argue that marriage should be supported, that divorce rates would increase as it would be easier to divorce and this as a whole would have a negative impact on family relationships. However, the study suggests that a ‘no fault’ divorce would in fact have a positive effect.
We will have to wait and see whether this study has an impact on the government and whether in the next few years we will have the ‘no fault’ divorce introduced. If you’d like to read the study by the Nuffield Foundation, click here.
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