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.