The Deputy President of the Supreme Court has called for the introduction of ‘no fault’ divorce in the UK.
In a wide-ranging interview with the Evening Standard, Baroness Hale claimed a ‘no fault’ system, in which no grounds would need to be given for divorce, would be cheaper and help to reduce the bitterness which so often accompanies family break-ups.
Currently divorcing couples in England and Wales must cite one of five reason to obtain a divorce – adultery; unreasonable behaviour; desertion for a period of two years or more; two years’ separation with consent; or five years’ separation without consent. The second reason – ‘unreasonable behaviour’ – is by far the most widely used.
But this system should be changed, claimed Lady Hale, the most senior female judge in the country. Couples intent on going their separate ways should simply be able to declare their marriage has failed, with no specific reason having to be cited. Such a process would make divorce quicker, cheaper and less emotionally fraught, Lady Hale claimed.
She told the paper:
“You would make a declaration that your marriage had irretrievably broken down and if you were still of that view a year later, then you get your divorce. That’s that.”
A one-year waiting period would allow couples not only to be sure they really wish to go ahead with the split, but also to try and reach agreements on the distribution of property and arrangement for any children.”
Her Ladyship argued:
“It should reduce cost and it would certainly reduce the need to produce a list of the other person’s failings which you have to do now on the most popular ground, which is the other party’s behaviour. That’s not a constructive way to start.”
The Yorkshire-born judge also discussed prenuptial agreements, or ‘prenups’, in which spouses-to-be define the distribution of marital property in the event of divorce. Lady Hale is opposed to Law Commission proposals to make these binding in law, saying this could lead to spouses receiving less than they are entitled to.
During the much-discussed 2010 case of Radmacher v Granatino, Lady Hale was the only one of the nine Supreme Court Justices to oppose enforcing the prenuptial agreement on which the case turned.
Her views on prenups have not changed since. Her Ladyship told the Evening Standard:
“The purpose of pre-marital agreements is almost always to give somebody less than they would otherwise be entitled to.”
Prenups required expensive safeguards, such as independent legal advice – “just at the time when you are spending a lot of money on your wedding. I don’t favour it.”
Situations can change, she added, “and what everybody thought was fair before they got married may very well not be fair if and when the marriage breaks down.”
Lady Hale also discussed the wearing of veils in court by Muslim women and the legal questions these pose, along with lingering sexism in some corners of the legal world.
“The purpose of pre-marital agreements is almost always to give somebody less than they would otherwise be entitled to.”
So do most contractual settlements. So what?
*Prenups required expensive safeguards, such as independent legal advice just at the time when you are spending a lot of money on your wedding.”
Only if Parliament so requires. People can make other agreements of even greater importance without legal advice – such as getting married in the first place!
“I don’t favour it.”
I do.
Situations can change, she added, “and what everybody thought was fair before they got married may very well not be fair if and when the marriage breaks down.”
If it’s what they agreed that makes it fair.
She is right about the dissolution of marriage except that a year is too long. Three months would be enough.
My opinion is that this country is too much in the dark ages for a no-fault divorce to make any real difference, and I would venture that Baroness Hale knows that very well. Politicians are adept at showbusiness campaigning for ‘changes’ that are rather meant to reinforce the status quo.
I believe the only thing that would really make a difference is dissolving the CSA, and thereby removing the financial incentive to damage the lives of your children and ex-partner. Replacing the CSA with something that is more humane and supports both parties equally after divorce would be a step in the right direction, but not agreeable to the politicians who are always busy waging class warfare.
I agree with you entirely about removing the CSA totally, anonymous. The way it is structured can cause financial chaos to the ‘non-resident parent’. The rigid stricture which informs one parent what he ‘owes’ the other parent couldn’t be more adversarial if it were deliberately designed that way. Child maintenance should be agreed between both parents without State interference.. There will obviously be some fathers who refuse to pay, but I suspect the majority would be quite agreeable to contributing a reasonable amount towards the upbringing of their children. My son recently made an attempt to come to an agreement with his ex. which did not involve the CSA. The result was that she blocked him from her telephone. The children have now become aware of the situation, which in my opinion, is totally wrong and totally unnecessary.
No-fault divorce would be a step in the right direction. Stating the obvious, it takes two people to fall in love and marry and it also takes two to bring a relationship to its breaking point. Faulting one party for the divorce makes as much sense as trying to credit one party as the source of the love and marriage that preceded the breakup. The current blame game only serves to make sure the parties are joined in battle from the outset.
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However, I agree it won’t make a huge difference as long as the next step in the divorce puts the parties into a primitive and confrontative process for financial relief. This process is a huge source of conflict because it puts no bounds on the interests and claims that can be entertained. It causes massive financial and emotional damage regardless of whether the case is settled in or out of the courts. Prenups is the one avenue through which couples have some chance of keeping themselves, and by extension their kids, away from the boxing ring that passes for financial relief proceedings in this jurisdiction. If Baroness Hale does not like them, she should go and make some real law starting with a legally binding regime for division of matrimonial assets.