Mackrell Turner Garrett

National Lawyers, Internationally

 

Legal profession lobbies government to consider no-fault divorces

 
 
 
White Collar Crime
 

Around 150 lawyers have called on Parliament to change the present divorce laws to allow for no-fault divorces.

Currently all divorces must be based on an irretrievable breakdown of the marriage but that has to be evidenced by one of five facts. These are:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years' separation with consent
  • Five years' separation without consent

Of these reasons three out of the five require a considerable amount of time to pass before a divorce can take place – at least two years in the case of desertion and separation with consent and five where consent is not given.

In the case of adultery there must be clear evidence that an adulterous act has taken place, which leaves many to turn to unreasonable behaviour to speed up their divorce.

This term under English law insists that the marriage has broken down irretrievably and that one of the parties has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her.

What is deemed unreasonable can be widely interpreted and the courts often rely upon the reality of the situation to make a decision. Where it is clear one party to a marriage feels strongly about their spouse’s behaviour so as to issue a divorce petition, the marriage has irretrievably broken down so far as that person is concerned and it would be futile for the courts to  decide that the behaviour  is not unreasonable, and therefore this usually satisfies the courts.

However, the issue with a divorce based on unreasonable behaviour is that this often has to apportion  fault to one or both parties, when sometimes this is completely irrelevant to the breakdown of the marriage.

This is why members of the profession have long argued for the adoption of a no-fault divorce system. In fact, leading family law organisation Resolution has more than 6,000 members, of whom more than 90 per cent agree that no fault divorce should be available to separating couples.

Resolution believes that the current system “often creates conflict and makes reaching a mutually acceptable agreement much more difficult” and it is particularly concerned about “the impact conflict and confrontation between separating parents has on their children.”

Speaking after the event at Parliament, Nigel Shepherd, National Chair of Resolution, said: “It is clear that current divorce law is not fit for today’s modern society. Divorce is already difficult enough; we don’t need it being made harder by the law pushing couples into conflicts and arguments.

“The results from this survey are overwhelming. These are family lawyers on the frontline, working with separating couples every day and they quite clearly believe that allowing for no fault divorce would be a positive option. For so many to descend on Parliament to lobby MPs and Peers shows that it is time for politicians to act, and bring an end to the blame game.”

There is also a historic precedent to the calls; more than twenty years ago, a form of no-fault divorce was included as part of the Family Law Act 1996.

However, lobbying from parties opposed to the principle of no fault divorce resulted in certain sections of that Act never being enforced and some parts repealed. Many of those who lobbied against the sections felt they would make divorce too easy, destroying the sanctity of marriage.

Again in 2015, MP Richard Bacon introduced a no-fault divorce bill under the ten minute rule. He proposed that couples should have the option to declare jointly that their marriage had broken down without relying on fault-based facts, however once again the movement gained little traction and did not make it past the initial debate stages in Parliament.

It is not yet clear whether or not Parliament will move forwards with plans to introduce no-fault divorce following calls from the profession to change the system.

Link: Resolutions call for no-fault divorce