I was thinking: if I could ask Santa for one thing to make family law better, what would it be? Property rights for cohabitants would come pretty high on my list, but I think my number one gift would be no fault divorce.
No fault divorce is a civilised modern system whereby the party issuing divorce proceedings can do so without having to blame the other party for the breakdown of the marriage. After all, most marriage breakdowns are not solely the fault of one party, and even if they are, what is to be gained by putting the blame on them? Okay, it might make the ‘blaming’ party feel a bit better (for a while), but it is also likely to unnecessarily antagonise the other party, making it more difficult to resolve arrangements for finances and, more importantly, the children. Further, and contrary to what many of the public believe, attributing blame makes no difference to what the court considers those arrangements should be.
In any event, the present system, whereby you have to attribute blame (by alleging adultery or unreasonable behaviour) unless you’ve been separated for two years is a sham. How many courts give much consideration to allegations of unreasonable behaviour? Judges have better things to do. In its present form, the divorce process brings the system into disrepute.
So, what kind of changes do I want Santa to bring down the chimney? Well, for a start, not the kind envisioned by the Family Law Act 1996, the then government’s ill-fated and ill-thought-out attempt to modernise divorce. I remember going to a seminar to learn all about the Act, only to find that the learned speaker was so confused by it that even he didn’t know how it was supposed to work! Thankfully, wiser counsel prevailed and the Act, or at least those provisions in it relating to reforming divorce, was shelved before it came into force.
There have been many other proposals as to how a no fault divorce process should work, but I favour something quite simple. This is essentially how it would work:
1. The process would begin with one or both parties filing with the court a statement that the marriage has broken down.
2. If the statement has been filed by both parties, or if the other party consents to the divorce, then the divorce can be finalised immediately by the court.
3. If the statement has been filed by one party only and the other party does not consent to the divorce, there would have to be a waiting period of, say, six months, before the divorce could be finalised.
4. Any period during which the parties had separated would count towards the six month waiting period, so that there would be no waiting period at all if the parties had already been separated for six months.
Such a system would do away with unnecessary animosity snf be quicker and cheaper than the present system. I don’t see that it would ‘devalue’ marriage, as some might suggest – after all, if a marriage has broken down, then why not make the process of dissolving it as quick and painless as possible?
That is what I would like to find under the Christmas tree on Wednesday.
Photo by Kris De Curtis via Wikipedia under a Creative Commons licence
John Bolch is a family law blogger