I know I keep ‘banging on’ about the need for no-fault divorce, but I make no apology whatsoever for that. Apart from the lack of legal aid, it is perhaps the most important family law issue of the moment. And the calls for the introduction of no-fault divorce keep getting louder.
The latest voice to add to those calls comes today from the Nuffield foundation, or more accurately from Professor Liz Trinder at the University of Exeter, in Finding Fault, a report funded by the Nuffield Foundation, summarising the findings from a study that explored how the current law regarding divorce and civil partnership dissolution operates in practice.
A summary of the report sets the tone by beginning with the following:
“The failure to implement the Family Law Act 1996 has left the divorce law in England and Wales untouched since 1973, and out of step with similar jurisdictions in Europe and North America in its heavy reliance on ‘fault’ as a basis for divorce.”
The Family Law Act 1996, as regular readers may know, included the then Government’s ill-fated attempt to bring in a system of no-fault divorce. Sadly, the Act’s provisions in that regard were so flawed that they were initially shelved, and then ignominiously repealed by the Children and Families Act 2014. So the powers that be acknowledged that we should have had no-fault divorce more than twenty years ago, but we still don’t have it, unlike other civilised countries.
Instead, we are left with this archaic system in which most people taking divorce proceedings have to ‘prove’ that their spouse was to blame for the breakdown of the marriage. As the researchers say:
“The current divorce law is now nearly 50 years old. Its apparent rationale and operation are at odds with a modern, transparent, problem-solving family justice system that seeks to minimise the consequences of relationship breakdown for both adults and children.”
Note that I put the word ‘prove’ in quotation marks. The reason I did so was easily picked up by the researchers, who said in the summary:
“The study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”
They explain this further later in the summary, by reference to ‘unreasonable behaviour’ petitions:
“Our analysis of behaviour cases, confirmed by interviews with judges and legal advisers, indicated that even the most minimal or trivial allegations are sufficient to meet the threshold for behaviour, as long as one element is attributable to the respondent.”
They go on:
“The reduction in expectations of what is required appears to reflect a collective shift in attitude of the courts. Qualitative interviews with legal advisers and judges underlined that, like family lawyers, courts take a pragmatic stance that if one party has decided the marriage was over then that was the reality. It was then the court’s task to try to facilitate the divorce – “looking to make the petition work” – not to place hurdles in the way. As a matter of law as well as logistics, it is clearly not for the court to engage in what are usually inherently non-justiciable issues about who was to blame.”
So essentially the law is being brought into disrepute. Litigants, lawyers and judges all know that the world has moved on in the fifty years since the law was put into its current form and we now realise that there is no point whatsoever in keeping a marriage going if one party wants out. They are therefore basically ignoring the will of the legislators who made the law.
But, as indicated, it is not just about bringing the law into disrepute. As the researchers say:
“There is a very robust body of evidence on the negative impact of parental conflict on children’s wellbeing. A key objective of family law and policy over the last few decades has therefore been to try to contain and minimise parental conflict post-separation. The evidence from this study is that the use of fault may undermine those efforts and actually trigger, or exacerbate, parental conflict in some cases.”
As we have been saying for years.
The researchers conclude that the law is in need of change, and they set out three options for reform: stricter interpretation of the present law; a modification of the present system, reducing separation periods to one year with consent and two years without; and a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months. Unsurprisingly, they plump for the last option, pointing out that:
“The divorce process is currently being digitised. This is a timely opportunity for long overdue law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.”
Over to you, Parliament…
There is nothing remotely surprising about the report’s findings. As I said just now, we supporters of no-fault divorce have been saying all of this for years. Hopefully, the launching of the report in Parliament today will at last make it impossible for our legislators to ignore this issue any longer.