What it means for Divorce reform ……. It’s not going to happen any time soon, despite overwhelming support within the Law profession for reform and a ‘no-fault’ divorce.
In November last year I travelled to the Houses of Parliament with over 150 fellow members of Resolution to lobby MP’s about the urgent need to reform divorce law. The conference that day was a great success and well received by those Ministers who met the Members.
Current basis for divorce
The only ground for divorce is that the marriage has irretrievably broken down. The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent.
No-fault divorce provisions in Family Law Act 1996 not implemented and now repealed
Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. In 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. The relevant provisions in Part 2 have now been repealed.
Arguments for and against no-fault divorce
Among others, some senior members of the Judiciary; the Family Mediation Taskforce; and Resolution have called for the introduction of no‑fault divorce.
In 2015, Richard Bacon introduced a ten minute rule Bill which aimed to allow no-fault divorce. The Bill did not proceed any further.
Advocates of this form of divorce speak of reducing the conflict which can be caused by allegations of fault. In some cases, the assertion of fault is considered to be a “charade”.
In a Court of Appeal decision in March 2017, Sir James Munby, President of the Family Division, spoke of an aspect of the law and procedures being based on “hypocrisy and lack of intellectual honesty”.
The arguments of those who oppose the introduction of no-fault divorce include that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown.
The Government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.
We can only continue to hope the much needed reforms will be made ……… but don’t hold your breath.
If you would like to speak to an experienced family lawyer about your divorce, speak to Farleys Solicitors on 0845 287 0939 or complete our online contact form.