Eyes wide open
This article was first published in Private Client Adviser on 27 October 2015 and is reproduced by kind permission.
Are the proponents of a 'no-fault' divorce missing the point? Shouldn't we be doing more to educate society about the significance of marriage rather than making it easier to jump in and out of one?
The notion of 'no-fault' divorce was originally incorporated into the Family Law Act 1996, but was subsequently repealed following criticism that its introduction would make getting divorced too easy, and thus weaken the principles of marriage.
As it stands, the grounds for obtaining a divorce in England and Wales is 'irretrievable breakdown of the marriage' which must be evidenced by one of five facts; adultery, unreasonable behaviour, two years separation with the consent of both parties, five years separation without consent, and desertion.
Consequently, if couples wish to avoid using a 'blame' ground to obtain a divorce, (i.e. adultery or unreasonable behaviour) they must wait before they are separated for two years.
Proponents of 'no-fault' divorce argue that the blame facts serve to increase acrimony between parties. There are of course ways of avoiding escalating hostility between parties to a divorce.
Clients could be advised of the benefits of conducting themselves amicably, explaining to the other party that a blame fact is only being used because there are no other immediate options, and/or offering them an opportunity to amend the divorce petition before it is filed.
The success of these approaches will hugely depend on the circumstances in which the marriage has ended and as such, it could be argued that little can be done to reduce animosity in cases where one party (or both) feel they have been wronged.
Clearly there are some cases where one or both parties to a divorce are out for blood and nothing can deter them from this mind-set. These will be the cases where a 'no-fault' divorce won't prevent divorcing couples from apportioning blame. These clients want to feel that their other half has taken responsibility, or in some cases, been found to be at fault for the end of a marriage.
However, many couples may have discussed the divorce proceedings, arrangements for children and finances before seeking legal advice. My experience is that clients will have often done a fair amount of research for themselves prior to their first appointment (largely I assume due to the amount of online information that is increasingly available).
The current approach could even be said to discourage couples who have simply grown apart or mutually fallen out of love with one another, have amicably decided to divorce, but are then prevented from being able to obtain a divorce without one party levelling some form of accusation against the other (unless of course they are happy to wait for two years before being able to move on with their lives).
Ultimately, the divorce process itself is a form filling exercise and rarely will a good solicitor advise their client to defend a petition. However, the real problems come in resolving those issues consequent on the breakdown of a marriage, namely division of the matrimonial finances and arrangements for any children.
If a 'no-fault' divorce existed, the question is whether this would help to reduce animosity from the outset and consequently prevent major bust up over the other issues, or would these problematic areas remain as dispute hotspots?
Hopefully this is a question that will be answered by the current research into the proposed legislative change.
Moving with the times
There is undoubtedly a need to update the law in line with reality. Key proponents of reform of divorce legislation include the previous and current presidents of the Family Division, Baroness Hale and Sir James Munby, who have urged the government to 'take the blame out of divorce and separation'.
There is currently research underway to ascertain how the current law is working. The new research, 'Finding fault? Divorce law in practice in England and Wales', has been funded by the Nuffield Foundation and is being led by Professor Liz Trinder of Exeter University. Having commenced in October 2015, a final report is anticipated in September 2017. It will certainly be interesting to review the findings and more importantly, see how those findings are translated into legislation.
Can it live up to expectations?
In my opinion the biggest obstacle to the desired effectiveness of 'no-fault' divorce will also be its greatest benefit, if it is actually achieved. That is, of course, the difficulty prevalent throughout Family Law; aligning clients' expectations with the reality of the parameters of legislation.
The breakdown of a marriage is inherently combative from the outset, with even the best and most amicable divorces more often than not being a distressing time for those involved. At worst, divorce is sometimes imposed on an unwilling and unprepared party.
Even with the help of a 'no-fault' divorce, it falls to the solicitor to support and guide their clients through the process, managing their expectations from the outset and promoting a conciliatory approach throughout.
Ultimately, such an approach from the legal adviser will help to smooth the associated issues as far as possible in the circumstances, with the overall advantage of keeping stress (and legal fees) to a minimum.
Eyes wide open
Finally, is there something to be said about the potentially pointless attempts to discourage people from getting divorced? Is it even right that couples who no longer wish to remain married should be encouraged to do so? Would it not be better to require people to enter into marriage thoughtfully and carefully, and promote a longevity approach that is so lacking in modern society, where everything has to be better and quicker?
If more people went into marriages with their eyes open to the fact that such a commitment takes hard work and staying power, then perhaps there would be a lower divorce rate. I certainly don't believe that discouraging people to stay together once the relationship has completely broken down (amicably or otherwise) is the sensible approach, both for the couple and especially for any children involved.