The deputy president of the Supreme Court, Baroness Hale, reiterated her call for divorce law to be reformed in an article in the Times on 9th April 2015. Her comments came 20 years after she first proposed reform of the current law when she was a member of the Law Commission. The call for reform is echoed in the Manifesto for Family Law published by Resolution – formerly the Solicitors’ Family Law Association (see blogs 2nd and 6th March 2015 Resolution Manifesto https://www.tayloremmet.co.uk/blogs/category/familylaw/).
The current law dates back to the Matrimonial Causes Act 1973; a 42 year old law which many agree is out of date and not fit for purpose. To obtain a divorce before being separated for two years or more, one party has to allege the other has committed adultery or behaved in such a way they consider unreasonable. The most common fact on which most couples divorce is behaviour. Behaviour and adultery divorces necessarily involve allegations of fault.
By the time someone comes to see a family solicitor it is usually when they have decided the marriage is either over. It is hard enough for separating couples to sort out the finances and the arrangements for children without having the extra burden of one of them having to make allegations of fault in order to get a divorce.
Family lawyers tend to describe divorce itself as essentially an administrative exercise. Divorce itself opens the door to deal with the financial claim. It is the financial side of the divorce which can become complicated and costly, not the divorce itself.
The Law Commission of which Lady Hale was a member resulted in the Family Law Act 1996; this contained a proposed reform to divorce law which took away the element of fault. The proposal contained in the 1996 Act was for couples to be able to divorce after a period of separation for one year. During this time couples were expected to try and resolve any outstanding financial issues and sort out what is to happen to the children. The one year period was effectively a “cooling off period”. This approach has been adopted and is working in a number of other countries.
Unfortunately the concept of no fault divorce never made its way through Parliament. Although many other parts of the Family Law Act 1996 become law, divorce reform was shelved. The Family Law Act was the product of a Conservative Government but it was mainly Tory MPs and the media who stopped it becoming law. It was thought that no fault divorce was said to undermine marriage and notions of responsibility.
As family lawyers we do not want to demean the importance of marriage. However, making divorce harder by having to allege fault does not help anyone. We need to be grown up about this. When a marriage is over, what is the point of adding fuel to the fire by forcing one party to allege the other is at fault?
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