Back in 2012 Sir Nicholas Wall, then President of the High Court’s Family Division, called for “no fault” divorces to be introduced in England and Wales. Although a “strong believer” in marriage, he argued that the days of one party having to blame the other for the end of the relationship should come to an end.
Allowing divorces to be granted in this way would be a significant step away from what the current law requires. The pilot scheme proposed by his successor Sir James Munby to deal with the finances on divorce may bring this vision a step closer.
Although the press almost routinely refer – wrongly – to “quickie divorces” and make a big thing of couples citing “irreconcilable differences” as the reason for their divorce the truth is that divorce grounds are strictly limited.
The person who starts proceedings, must prove that the marriage has irretrievably broken down by establishing one of the following five facts:
2 years separation with consent
5 years separation (no consent required)
The 2 and 5 year separation grounds are already “no fault” grounds for divorce.
If a couple want to divorce in less than two years, the application will need to be based on one of the remaining facts: that the other party committed adultery or that their behaviour was unreasonable.
“There are many good reasons for relationships to end” Family Law Partner at Wilson Browne, Helen York, comments. “In some cases, time is important as it allows people to come to terms with the breakdown of their relationship. In many cases, however, an amicable agreement to end the relationship can turn confrontational when the parties are faced with having to live separately for two years or to start laying blame for the breakdown of the relationship. This can be hugely damaging to everyone”.
There has been a move towards parties taking a conciliatory approach when applying for a divorce. Mediation, as a non-contentious route is being increasingly used, and in most cases has to be attempted before Court proceedings for a financial order can be issued. This seems to be directly at odds with the word of the law which demands that either blame be placed, or that a significant amount of time elapse before a divorce be granted.
Since many people seek a fast resolution so that they can move on with their lives, many applications are based on the fact of unreasonable behaviour. What constitutes this is, of course, subjective.
In some cases divorcing couples are left relying on “behaviour” that may at first blush appear far from unreasonable such as “taking up cycling”, “spending too long at work” and “snoring”.
In order to produce examples of behaviour that the court is likely to accept as unreasonable, parties may be tempted to either exaggerate or to bring up personal information that the other would prefer to be kept private. As well as this, many people to not want to accept blame for the failure of a marriage. They may therefore deny allegations of unreasonable behaviour, even if they agree that the marriage has broken down. This can lead to a lengthy and costly process of litigation, which may have been avoided entirely, had the finger not been pointed.
The reality is, that almost 6 years on, nothing really has changed in so far as how a marriage is legally brought to an end. Many say the law is out of touch with modern society, and would be in favour of the introduction of “no blame” divorces such as those in place in Europe and the United States.
“Of course there must be a balance between promoting marriages, as something to be taken seriously and allowing those whose marriage has broken down to obtain a divorce as painlessly as possible” Helen York argues. “Making provision for ‘no fault’ divorces is unlikely to undermine the institution of marriage, however. Making it easier to obtain a divorce from the courts is unlikely to make it easier to admit that your marriage has broken down”.
For any advice on Divorce contact our Specialist Team on 0800 088 6004.