The journey of no-fault divorce: are we a step closer to divorce reform?

Divorce|May 29th 2018

Blogger John Bolch responds to an article in The Times that suggests the Government may finally be taking divorce law reform seriously (although he is proceeding with caution).

We’ve had false dawns before on the introduction of no-fault divorce, most notably the ill-fated Family Law Act 1996 (more of which in a moment), but a report in The Times at the weekend suggests that the Government may finally be getting serious about this much-needed and long called-for reform.

Before I get too carried away with excitement, I should say that the murmurings from Westminster reported by The Times do not exactly indicate enthusiastic support for the reform, just that the Government is putting it anywhere near the top of its to-do list.

Lord Chancellor David Gauke has apparently agreed that the case for change is “strong”, and said that he was “increasingly persuaded . . . that what we have at the moment creates more antagonism than we really need”.

He added: “I don’t think the best way of helping the institution of marriage is by putting bureaucratic hurdles in the way of a divorce” and said that ministers were “continuing to look closely” at the issue.

Clearly, there is still a long way to go.

Still, these are the most hopeful signs for many years that a blameless divorce system may at long last be on the horizon. Of course, we must all continue to press for reform, to ensure that the matter does not slip down the Governmental agenda.

And when (or should I say ‘if’?) the time finally comes that no-fault divorce is at the top of the Government’s agenda, we must make sure that this time it does it right.

I don’t think that a no-fault divorce system need be very complex. In fact, simplification must surely be one of the other beneficial features of such a system.

However, that was not what happened twenty-two years ago when the Government made its first attempt at this reform. As I’m sure I’ve mentioned here previously, I well remember at the time attending a seminar on the new Act, given by an eminent family law expert. Even he confessed to being mystified as to how it was intended to operate. And that complexity was, I think, one of the reasons why the Act (or at least that part of it that related to no-fault divorce) ultimately failed to pass into law.

Obviously, we cannot allow something similar to happen this time, and for another opportunity for reform to slip through our hands, with a further twenty years to pass before the next one arrives.

As I said, the new system can be quite simple. The model put forward by Resolution, the association of family lawyers that has done more than anyone over the years to press for reform, simply involves one or both parties giving notice that the marriage has broken down irretrievably and then, after a period of six months, if either or both parties indicate that they still wish to proceed, the divorce is finalised.

Personally, I think that six months is too long – if the marriage is over, why force the parties to stay in it for another half a year? Would three months be sufficient? And why do we need a set period for the parties to reflect at all? After all, how often does a petitioner change their mind about the divorce? And even if they do subsequently decide that they’ve made a mistake, they can simply re-marry, as some couples do.

Clearly, the exact form of a no-fault system is still open to debate, and as in the nineties, there are likely to be those holding strong views, for example not to make divorce too easy. However, we must not let that cause the reform to get bogged down or, worse still, end up with the sort of fudge we had back then.

Just one final point: we should not expect too much of no-fault divorce. In the quote mentioned above, Mr Gauke speaks of ‘helping the institution of marriage’. The report in The Times also mentions Lady Hale, the President of the Supreme Court, saying that it would ‘strengthen marriage’. I’m not entirely sure that she said exactly that, but she did say in her recent speech to the Resolution conference that attributing blame for the breakdown of the marriage can make it more difficult for the parties to reconcile.

That may be true, but reconciliation after the filing of a divorce petition only occurs in a very small number of cases. No-fault divorce is not about strengthening marriage (just as it is not about weakening it), but about making it less painful when it breaks down.

Author: John Bolch

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.

Comments(2)

  1. Helen Dudden says:

    I feel it could help with child access issue’s. It often gets in way of making sensible decisions. Of course, relationships are based on emotions, good and bad.
    Emotional pain in my opinion, a difficult one to come to terms with.

  2. JamesB says:

    Two issues here. 1. It doesn’t address the need for inexpensive prenups due to the unfairness of the current system rewarding the grab the children and run/change the locks and claim domestic abuse and controlling behaviour approach. 2. If you do that there will be more divorces.

    What we need is inexpensive enforceable prenups and a time period no fault divorce procedure. Indeed thinking about it, the Scottish system springs to mind as that’s what they have. Sorted by regional government where we don’t have anything but crusty old establishment types.

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