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Georgina Went

No-Fault Divorce: the solution or the problem?

May 3rd, 2016

Trainee Solicitor, Georgina Went, outlines the proposed amendment to family law from Richard Bacon MP which would enable couples to say there was no fault for the break up.

On 13th October 2015 MP Mr Richard Bacon presented a bill to our Government for an option to dissolve a marriage without including the element of blame, also known as a no-fault divorce.

Mr Bacon’s principal message from his proposal was that members of our society should be able to get a divorce without any requirement to ‘throw mud at one another’. In English Law, the only ground upon which a petition for divorce may be presented to the Court by either party of the marriage is to show that the marriage has broken down irretrievably. The Legislation controlling divorce in the United Kingdom is the Matrimonial Causes Act 1973 (“the Act”). This Act outlines that the Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner seeking a divorce satisfied the Court of one or more of five facts.
Section 1(2) of the Act outlines these five facts as:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

In essence, Mr Bacon was proposing we introduce a sixth fact whereby both parties to the marriage had separately signed a declaration that the marriage had broken down irretrievably. Mr Bacon relied on research carried out by YouGov on behalf of Resolution, which showed that more than 27% of couples who were citing unreasonable behaviour had admitted that in fact these claims were not true but it was simply the easiest method to get a divorce. It is shocking that in so many areas of law today people are encouraged to take part in alternative dispute resolution as a way of diverting conflict away from the Court system yet our divorce law is forcing individuals to create blame.

No-fault divorce has been a legal development which has been at the forefront of major debate for many years now. Part 2 of the Family Law Act 1996 introduced no-fault divorce, but this was never fully implemented. The main aim of this piece of legislation was to reduce the conflict in a marriage which needs to be dissolved and provide a way out for these individuals which does not involve further conflict. The amendments which affected the introduction of this part of the Family Law Act were reflecting a concern to uphold the institution of marriage and to increase the exploration of counselling and marriage support. Most of Part 2 of the Family Law Act 1996 was repealed by section 18 of the Children and Families Act 2014.

Mr Bacon was very clear that the introduction of a sixth no-fault fact would not in any way alter the concept of blame within divorces and would still allow individuals to rely upon the other five facts where necessary. However, a shadow was casted over the proposal by Sir Edward Leigh who argued that ‘despite the obvious problems that sometimes occur in a marriage, the emphasis in recent years has been on strengthening marriage as an institution. Bringing in no fault divorce, while seeking to ameliorate one problem, would undermine that new appreciation by making divorce easier, and thus increasing the number of divorces’.

Research which has tested the correlation between no-fault divorce and increasing divorce rates in countries who have introduced no-fault divorce have clearly shown that the two do come hand in hand.

The discussion continues. It will be interesting to see what response the proposed bill has on its second reading.

If you wish to discuss your options or receive advice generally on your family law situation, please contact Jenny Russell on 01494 773377 or by email at hello@lennonssolicitors.co.uk.

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