Further thoughts on putting the case for no fault divorce

Family Law|April 26th 2016

It may seem a strange thing for a family lawyer to say, but I’ve always taken the view that what goes on within a family, and in particular between spouses or partners, should usually remain private. I also believe that, as odd as this might seem to a layperson, most family lawyers take the same view.

Unfortunately, there are of course times when the cloak of privacy must be breached, for example where arrangements for children or finances cannot be agreed, or where there has been domestic violence. However, there is also one area where privacy is routinely breached completely unnecessarily.

I am talking of fault-based divorce petitions, where in order to obtain a divorce one or both parties must make allegations of adultery and/or unreasonable behaviour against the other. Those allegations are often of an extremely personal nature. Imagine the effect upon the unconsulted respondent to the allegations, who has had intimate details of their private life made public. At best it is a betrayal, and at worst it is a declaration of war. It is not surprising that many respondents react badly, making counter-allegations and withdrawing their cooperation in all matters relating to the divorce including, most damagingly, arrangements for any children.

And all for what? To make it a little bit more difficult for those who have not been separated for the requisite period of time to get a divorce. How many people are prevented, or even discouraged, from getting a divorce as a result of that difficulty? How many of those decide to give their marriage another try? Virtually none, I would say. Further, as I have pointed out here previously, the current law is routinely put into disrepute by people ‘manufacturing’ weak allegations of unreasonable behaviour in order to circumvent the law’s requirement.

I wrote here yesterday asking what we family lawyers have to do to get the message across about no fault divorce. However, I didn’t really come up with many answers in that post, save that we must continue to press the case for the introduction of a no fault system at every opportunity.

Going a little deeper, we need to press the case firstly to our politicians, who have the power to change the law, and secondly to the general public, whose votes our politicians require. The second is a little difficult: how do a few thousand lawyers get the message across to the 56-odd million people in England and Wales, particularly when lawyers generally are not the public’s favourite group of people? Well, I admit that is discouraging, but it shouldn’t stop us from trying – little by little we may gain ground.

Politicians, however, are a very small group, at least those who represent us in parliament. It is a far less daunting prospect to influence them. What we need to do, of course, is appeal to the things that they consider important.

And here we are in luck: no fault divorce ties in perfectly with two linked things that are close to the hearts of our politicians: reducing the cost of the family justice system to the taxpayer and promoting mediation as a means of resolving family disputes. The issue of cost has of course become much more urgent since the financial crisis of 2008, and the promotion of mediation, which has been a government aim at least since the ill-fated Family Law Act of 1996 was first debated, became the flagship government policy to replace legal aid for most private law family matters, when it was abolished in 2013.

Doing away with the need to attribute blame for the breakdown of a marriage will at a stroke make it more likely that couples will be able to resolve their family disputes by agreement, whether through mediation or otherwise. The taxpayer will thereby be saved the considerable cost of contested court proceedings in all of those cases, and mediation will be boosted as a means of resolving disputes.

OK, I know that these ideas will not of themselves do a lot to bring about no fault divorce, but at least they may provide us with a couple of extra tools that we may use when putting the case for reform.

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.

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