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A few thoughts on the no fault divorce bill

On Tuesday David Bacon MP’s ten minute rule bill to introduce no-fault divorce passed its first reading. It will have its second reading on the 4th of December. I could say a lot about divorce reform (I already have elsewhere – see, for example, this post), but here I will keep my comments upon the bill to a minimum.

The proposed bill is very simple, essentially having just two points:

  1. Adding to the ‘five facts’, one of which must currently be proved to show that the marriage has irretrievably broken down (adultery, unreasonable behaviour, two years’ desertion, two years’ separation and consent or five years’ separation) an additional option of divorce on the written consent of both parties, without the need to prove anything else. David Bacon specifically indicated that the other ‘five facts’ would be retained, although I cannot see the need for two years’ separation and consent to remain – if you can get a ‘consent divorce’ without waiting two years, it is clearly superfluous.
  2. Including a 12 month ‘period for reflection and consideration’, to give the parties an opportunity to reconsider whether they wish to proceed with the divorce (I am not clear whether this is just to apply to the ‘consent’ fact, although if it is then that would obviously be a serious disincentive to using that fact).

In principle, a simple divorce by consent appears to be a good idea, doing away with the need to prove that the other party was at fault for the breakdown of the marriage, which can obviously increase animosity unnecessarily and is in any event artificial – few marriage breakdowns can be attributed solely to the ‘fault’ of one party. However, I would go much further: there is no point in keeping a marriage going when one party wants out. Accordingly, I would say that either party should be able to file a statement of marital breakdown, to which there is essentially no defence (apart, perhaps, from financial hardship). The period of reflection (see below) would then commence, at the end of which the divorce can be finalised. The ‘five facts’ that exist now can be done away with completely.

I turn now to the 12 month period for reflection. Whilst I agree that there should be some delay, rather than having the divorce effectively granted ‘by return of post’, I’ve never been quite sure why so many people, politicians particularly, believe that such a long period is required. So far as I can see it just prolongs matters unnecessarily, preventing the parties from getting on with their lives. My view is that a three month period should be quite sufficient.

Along similar lines, there is also the issue of whether arrangements for children and finances should be sorted out before the divorce is finalised, as I understand is the case in many other jurisdictions. Personally, I think that there may be good reasons to sort out finances before finalising the divorce, as there can be a direct connection between finances and divorce, especially in relation to pensions. However, I’m not so sure about arrangements for children. After all, many children disputes take place quite independently of any divorce proceedings, and anyway arrangements for children are not final in the same way as finances.

Those are my thoughts, but before I close I should mention that Sir Edward Leigh MP opposed the bill on the erroneous basis that it would increase the number of divorces. I have explained many times previously that this is not so (we effectively already have no-fault divorce now for cases where both parties want it, albeit not in name), so I will say no more about it here.

In summary, the bill is interesting, but seriously flawed. Whatever we do though, as Marilyn Stowe said on Twitter, please don’t rush into it without proper consideration and careful drafting!

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. David Mortimer says:

    No-fault divorce is the middle-class equivalent of public assistance, creating single-parent homes among the affluent as welfare did among the poor. In the United States, where the trend began, all the major institutions of the divorce industry were originally created as ancillary to welfare: juvenile/family courts, child support enforcement, child protection services. No-fault divorce extended these “services” to the middle class because that was where the money was, and with it political power.

    • Luke says:

      “No-fault divorce is the middle-class equivalent of public assistance”
      No it isn’t, that won’t be the effect at all, marriage is a voluntary act – and it has nothing to do with child support , we already have ‘unreasonable behaviour’, which is in fact used as no-fault divorce in all but name for people who are sensible enough to realise it. There will be no extra state assistance as a result of such a change.
      No-fault divorce will also not stop large and long lasting spousal support claims – so it won’t change financial obligations. It is in fact these very unreasonable spousal support claims that is one of the reasons the marriage rate has gone off a cliff…

    • Nordic says:

      No fault divorce was introduced in many parts of Europe decades ago. My parents divorced in the Nordics on a no-fault basis in the mid 1970s. No fault is not what feeds the divorce industry (an industry which really does not even exist in the Nordics). What feeds the divorce industry is the acrimony and conflict created by court centric approaches such as those in the UK and US.
      I agree entirely that our family law is designed to generate fees and serve the massive vested interests which grown up around our courts. However, no-fault is not part of that problem. Removing fault and accepting two adults’ decision to parts ways without kick-starting the acrimony in a meaningless game of blame apportionment is a step in the right direction, albeit a small step.

  2. Andrew says:

    Once upon time divorce was granted by the legislature; then by the judiciary; now let’s finish the job by handing it to the executive branch.
    Divorce should be a matter of filing a notice with the Registrar of Births, Deaths, Marriages and Divorces – not the court – and by filing a second notice three months later confirming it: the Registrar would then issue the certificate. There need be no judicial involvement.
    There should be no financial hardship defence: that was apposite before pension sharing but is not needed now.
    The courts would of course retain jurisdiction over the future of children if parties could not agree; and also over money unless there was a pre-nup; if there was it would be cast-iron with the possibility of postponing it during the minority of the children of the parties. If there was no pre-nup there would be a presumption of equality for rich and poor – again with a postponement if necessary to protect the children.
    Nullity and judicial separation could be abolished. JS is a pointless remedy except in the hands of spiteful spouses who want to stop their exes from remarrying at least until five years have passed. If you don’t believe in remarriage, fine, don’t remarry; but don’t impose your views on your ex.
    It’s just applied common sense.

  3. elena says:

    The divorce on no fault basis will work when one of the parties is: not hiding assets and dissipating matrimonial property and is not trying to destitue the other spouse.

  4. Nick Langford says:

    The simplest solution would be to adopt the Scots system which is pretty much identical but reduces the waiting times to one year for separation with consent and two years for separation without consent. The result is that no-fault separation with consent accounts for 25% of Scots divorces while separation without consent accounts for 68%; unreasonable behaviour and adultery are confined to a small minority of petitions,

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