Surely it’s time for the introduction of non-fault based divorces!
Posted on 28th November 2016
This week has been dubbed ‘Good Divorce Week 2016’ by Resolution, an organisation of approximately 6,500 family lawyers and other professionals in England and Wales who believe in a constructive, non-confrontational approach to family law matters. This campaign will bring to light a number of pertinent issues, including the ongoing campaign for non-fault based divorces.
Why do we need non-fault based divorces?
If a client wishes to divorce at present, unless they have been living apart for two years, one of them needs to assign some form of blame i.e. adultery or unreasonable behaviour. But what does this actually achieve for the majority of our clients? Satisfaction that they have ‘got one over’ their cheating partner? Satisfaction that they have cited the others numerous affairs and alcohol or drug issues? Satisfaction that they have issued the divorce petition first so that they can claim back their costs?
At perhaps the most difficult time for many, the current fault based divorce process does not, in my view, assist our clients all their families. Most significantly, it does not promote the key Resolution principles and collaborative ways that we, as legal representatives, should be advocating. Even the most sensitively drafted unreasonable behaviour petition can cause offence and at such an early stage of the separation process, this can be disastrous leading to difficulties in future negotiations regarding children and finances. Not only this but it can lead to increased costs to both parties and contributes further to each parties heightened emotions.
How would it work?
As suggested by Resolution – one or both partners would give notice to the other that the marriage had irretrievably broken down. Following this, the divorce process would continue and after a period of 6 months, if both partners agreed to the divorce continuing, the divorce would be finalised.
How does a non-fault divorce future look?
Of course, it would be somewhat naïve to assume that a non-fault divorce procedure would completely eradicate the natural heightened emotions associated with a separation but at the very least, it is hoped that it would put the parties on a level footing and encourage co-operation and amicability. In my view, this is fundamental given that parties also need to resolve matters concerning their finances and any concerning their children both of which require a sensitive and practical approach.
If non-fault based divorces are good enough for Australia, the United States and Spain, why not the UK.
Only time will tell.