Waiting for no-fault divorce

Divorce|Family Law|November 19th 2019

General Election aside, across the country, family lawyers have been on tenterhooks for months as they wish to preserve no-fault divorce. 

The Divorce, Dissolution and Separation Bill

The Family Law Organisation, Resolution, which has over 6,500 members committed to a non-confrontational approach in practice, is credited for having successfully pushed for a seismic change in divorce law.

The Divorce, Dissolution and Separation Bill, (amongst other significant achievements) paves the way for a couple to divorce without one being required to blame the other. The Bill has had its 3rd reading in parliament and now awaits Royal Assent – the process which brings it into being, making it law.

Family lawyers have been chewing their nails because the recent prorogation of parliament (subsequently found to be unlawful) and the imminent General Election have risked the Bill falling by the wayside. The government has, thankfully, indicated its intention to ensure that the Bill completes its passage in the new parliament, assuming there will be another conservative government. We wait with bated breath.

The Divorce, Dissolution and Separation Act 2020 (as it may become known) would have a significant impact on the lives of many couples wishing to bring to an end their marriage or civil partnership. For almost 45 years English and Welsh divorce law have required couples to have lived separate and apart for at least 2 years or for one to blame the other for the breakdown in the marriage. Either for their unreasonable behaviour, adultery or desertion. The new law would dispense with that requirement and the benefits have sparked furious debate.

Arguments have been rife that the new law would degrade the strength of marriage by making it disposable on a whim. The traditional and religious arguments against the Bill are not difficult to see: Marriage being a symbolic commitment beyond a simple light agreement. It has been suggested the process ought to be hard, to encourage people to fight for their marriages for the benefit of the family unit and society.

Benefits of a no-fault divorce

However, the considerations that have led to the Bill making its progress through parliament have ultimately shown that the benefits more significant. Key amongst these is the wellbeing of children.   Children invariably love their parents regardless of their adult failings. They want and need comfort, love and stability. Parents want this for their children. But divorce can represent a very strong distraction for couples, leaving them switching their priorities to point-scoring with their children witnessing disagreement and absorbing high emotions without their parents necessarily being aware that they are.

Breakdown of a marriage brings with it emotional turmoil.  But it is rare that one person is entirely responsible for the breakdown. The advice of divorce lawyers has been consistent for years that while one spouse’s divorce petition may cite detailed examples of unreasonable behaviour, no judge or lawyer in the land would imagine that the breakdown has been totally one-sided in every case. As the cliché says – it takes two to tango. 

While one person may have behaved poorly, many would accept that they too could be criticised somehow. But why the need to?  The Divorce, Dissolution and Separation Bills seeks to remove that need. While there will always be cases of real unreasonable behaviour and cruel adultery, there won’t always.

For those wishing to cause themselves as little anguish as possible and extricate themselves from an unpleasant marriage, the prospect of no-fault divorce would enable them to decide with their spouse that their marriage has come to an end and to agree on a pragmatic solution rather than to achieve conclusion by an attack from the start.

Psychologists say that blame is complex and subjective and that being blamed is painful, however culpable one might feel. This can set the tone for financial negotiations and making plans for the children. To start those considerations on battle lines invariably places children in the middle and that can have long-lasting emotional effects on them.

The ability to achieve a divorce without having to blame or wait for up to 5 years to start the divorce represents a positive legal evolution that reduces acrimony, spares children more upset and empowers couples to have more control over achieving a positive outcome.

#abetterway

It is hoped that whatever the outcome of the General Election on 12 December, that the new Government will choose to renew the Divorce, Dissolution and Separation Bill’s route to Royal Assent providing divorcing couples, their children and family lawyers with #abetterway.

Get in touch 

If you would like any advice on divorce or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers here. 

Seb represents clients in all aspects of family law and is well versed in handling complex and high-net-worth cases often with an international element. He is described in the Legal 500 as practical, realistic and personable’, ‘pragmatic and sensitive’ and ‘excellent, intelligent and thoughtful’.

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