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New calls for ‘no fault divorce’ as the effect of current law on separating couples comes under scrutiny once again

The question of whether the concept of ‘no fault’ divorce should be introduced into UK law has again been explored in another House of Commons Library Briefing Paper published last month.

Interestingly, it comes as a new research paper by the Nuffield Foundation found that divorce law in England and Wales incentivises people to exaggerate claims of ‘behaviour’ or ‘adultery’ to get a quicker divorce, ultimately leading to increased conflict, stress and suffering for separating couples and their children.

Blame game

Currently, couples in England and Wales who want to bring their marriage to an end must demonstrate that their relationship has irretrievably broken down by citing unreasonable behaviour, adultery, desertion or separation of at least two years. Most of these mean that the spouse asking for the divorce must blame the other for the breakdown of their marriage.

In the newly published study by the Nuffield Foundation, people who were going through a divorce were surveyed about the process. Nearly two thirds – 62 per cent – of those who applied for a divorce and 78 per cent of respondents believed that the emphasis on fault had made their separation more bitter than it might have otherwise been.

Around 21 per cent of respondents claimed it had made coming to an agreement about children harder, while 31 per cent said it had made financial discussions more difficult.

Time for change

Many believe the time is right for the law to be changed. Britain’s most senior judge, Baroness Hale of Richmond, the president of the Supreme Court, has said it’s time to look again at proposals made when she was at the Law Commission in the 1990s.

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, has also backed the move to allow couples to separate without having to apportion blame on a legal document, and without having to prove they’ve been separated for two years.

And Exeter University’s Professor Liz Trinder, who led the research for the Nuffield Foundation’s report, said there was strong support for divorce law reform amongst the senior judiciary and the legal profession.

She said: “We recommend removal of fault so that divorce is based solely on the notification, and later confirmation, that the marriage has broken down. This should be a purely administrative process with no requirement for judicial scrutiny – in the twenty first century the state cannot, and should not, seek to decide whether someone’s marriage has broken down.”

What happens now?

Although there seems to growing pressure on the Government to look again at this area of the law – which so many evidently believe is shouting out for reform – it may not see it as a current priority for legislative change.

The House of Commons briefing paper published in October concluded: “The Government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.”

For legal help and advice about divorce, please contact Wards Solicitors’ Family Law and Divorce team by phone or by calling into one of our 11 local offices.

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