30 June 2014
Avoiding the blame game – is it time for no-fault divorce?
Sir James Munby, the President of the Family Division, recently called for the introduction of no-fault divorces, saying it would bring some "intellectual honesty" to the system.
He has gone so far as to suggest that where couples agree that their marriage or civil partnership has broken down, the matter could be dealt with by a registrar as a purely administrative matter, rather than being subject to the scrutiny of a judge.
B P Collins’ family team agrees that in many cases apportioning blame can fuel conflict, which is particularly detrimental where there are children involved. It seems sensible to bring the law up-to-date with much of the rest of Europe and other Commonwealth countries, such as Australia, which have had no-fault divorce systems in place for many years.
Although at present, we claim to have a system of no-fault divorce, in each case a judge has to certify that the marriage or civil partnership has irretrievably broken down as a result of one of five facts; adultery (which does not apply to civil partnerships), unreasonable behaviour, desertion, separation for two years with both parties' consent to the decree, and separation for five years.
What this means in practice is that if a party to a marriage or civil partnership wants a divorce or dissolution straight away, they will need to base their divorce on the other party's adultery or behaviour and so "blame" that person for the breakdown of the relationship.
In the case of behaviour it is necessary to provide examples of what the petitioner considers to be the other party's unreasonable behaviour. Although it has become the practice to make the examples as non-contentious as possible, the suggestion that one party is solely to blame can prove a stumbling block or cause unnecessary distress, when in reality there are often many reasons for the breakdown of a relationship.
In the vast majority of cases, both parties agree the relationship has broken down but do not wish to wait two years to proceed with a divorce and so accept a behaviour petition as a means to an end.
Fran Hipperson, senior associate says: "It is understandable that where one party feels they are not to blame for the breakdown of the marriage, an unreasonable behaviour petition can be cathartic, allowing them to air their grievances. However, in the majority of cases the current system forces couples to apportion blame which only serves to make an already difficult situation worse."
Claire Filer, an associate solicitor agrees, adding: "Enabling parties to begin the process of divorce or dissolution by stating that the relationship has irretrievably broken down and not having to blame the other or wait until they have been separated for two years, or in some cases, five years, will reflect the reality of relationship breakdown, which is that often there are many reasons for it, or that a couple has simply drifted apart."
Although critics say this will make the process of divorcing too easy, Fran and Claire disagree as it is likely that under any new changes, it would still be necessary to have a period of separation before a decree of divorce or dissolution can be granted.
In Australia, for the court to be satisfied that the relationship has irretrievably broken down the parties need to have been separated for one year.
Fran continues: "Any new law would need to make sure that the parties did not have to wait to resolve financial matters between them (particularly since urgent applications sometimes have to be made). It is also vital that there is provision to prevent the divorce or dissolution from being finalised if there is a good financial reason for doing so, for example, to prevent one party from rushing an application through in order to gain a financial advantage and also to ensure that pension rights are protected until a financial resolution."
And, they say, in addition to the emotional advantages of having a no-fault divorce, in a court system which is currently overburdened, it makes sense to free up judicial time by simplifying the divorce or dissolution procedure and making the process of obtaining a decree, (particularly where there are no objections) administrative rather than judicial.