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A couple of weeks ago we wrote about Resolution’s manifesto for family law, which sets out the organisation’s “wish list” of improvements which could be made to the family justice system to help adults, parents and children who get caught up in it. (For those who don’t know, Resolution is the organisation of family lawyers that aims to make divorce less traumatic for all involved, and to which we all belong at CFLP).

One of their key campaigns, and a part of their manifesto, is the introduction of a “no-fault” divorce, allowing couples to part without legally having to apportion blame for the breakdown of the marriage or civil partnership. At present, if you want a “blame-free” divorce/dissolution petition then you need to wait until you have been separated for two years and ensure you have your spouse’s consent to presenting a divorce petition. Even then, the system requires one person to ‘petition against’ the other, rather than their being a joint application. If you cannot get consent/acceptance or prove your allegations, you will need to wait for five years for a divorce.

Resolution cites research carried out by Exeter and Kent Universities which demonstrates the destabilising effect which the question of broaching the grounds for divorce can have. If the former couple want to move forward and resolve financial issues sooner rather than waiting for two years, then one of them will have to accuse the other and the other will have to accept the accusation of either adultery or unreasonable behaviour. The research demonstrated that the blame requirement can upset and antagonise parties and disturb the equilibrium of the dispute resolution process. We are only too aware of this. At best it is an awkward conversation to have, and frequently it can upset otherwise sensible negotiations about arranging your lives after you part.

We entirely support Resolution’s call for the statutory introduction of a dignified and blame free option for bringing a marriage or civil partnership to a close. Senior members of the judiciary are also adding their voices to the campaign: amongst others, Baroness Hale of Richmond has called for a no fault divorce option after a one year “cooling off period”.

So why do we have this requirement of fault or blame in our modern divorce laws?

Well, without deviating too far off into a lesson on historical jurisprudence, one could probably blame the Victorians, and then successive law makers who developed the law of divorce incrementally and in line with the social mores of their times. However as we have no significant development of the law of divorce since 1969, we are using an antiquated statute which many say is no longer appropriate.

We wrote about the history of divorce laws in a blog a couple of years back and you can have a read through that for the detail of the various statutes to which separating couples have been subject. But in summary: back when Queen Victoria was on the throne, the Matrimonial Causes Act of 1857 introduced divorce for everyone, rather than it being the preserve of those with the means to petition Parliament. However to get a divorce in those days adultery had to have taken place, and it must not have been condoned or indeed colluded in! Furthermore for a woman to get a divorce, the adultery had to be accompanied by an aggravating factor such as rape, incest, cruelty, or desertion. Enlightened times! This extra requirement for women was abolished in 1923, but adultery remained the only ground of divorce until 1937 when another Matrimonial Causes Act introduced three further grounds for divorce: cruelty, desertion, and incurable insanity.

In the swinging sixties, the Divorce Reform Act 1969 introduced the “irretrievable breakdown” concept with which we are familiar today, along with the five “facts” (adultery; unreasonable behaviour; desertion; 2 years separation with consent; and five years separation without consent) required to prove that irretrievable breakdown. That Act, consolidated in the Matrimonial Causes Act 1973, still forms the basis for our fault based divorce system.

Attempts in the 1990s to reform the system failed as although a no-fault divorce mechanism was included in the Family Law Act 1996, the relevant provisions were never enacted due to a traditionalist backlash in the House of Lords, and have since been repealed.

The renewed efforts of Resolution, the judiciary, and others to make the law more user-friendly and to inject some common sense and dignity into the divorce process are to be welcomed, but given the general, across-the-spectrum political unwillingness to get to grips with family law, and the other priorities of the Government, we are not holding our breath that anything will change soon. So we remain stuck with a statute over 40 years old which forces those who would wish to bring a swift end to a marriage forced to sling mud at one another, accept getting hit with that mud, or wait for two years to proceed in a slightly more dignified fashion.

If you would like to speak to Simon, Gail, Adam, Sue or Tricia about grounds for divorce or any other aspect of family law, please get in touch on 01223 443333.