Baroness Hale On Divorce

Divorce, the big bad “D” word, which sadly does not have many good connotations attached to it. Most people don’t want to discuss it and when you do hear stories about it, they are often ‘horror’ stories that make you think in the end “who are these people?” Recently, a good friend of mine has begun her divorce proceedings, and on many of our late night chats with a lovely glass of wine, I am often told of the details. When I then leave to go home, I am horrified, and I do tell her this as well. To think that at one point these two people loved each other, were each other’s’ first love and have two beautiful children, and now they seem like completely different people. Her soon to be ex-husband who was my friend, no longer seems to speak to me because he feels I have taken ‘sides’ in the whole proceeding. They are trying to find fault and blame one another for the breakdown of their marriage. I often thought to myself surely there must be a better way of doing this, surely there is no need for all this hostility and shaming of one another. Then, I came across an interview by my favourite judge in the Supreme Court, it was like a light bulb went off in my head.

Baroness Hale of Richmond, Supreme Court Justice, of the United Kingdom, the first women to hold a seat in the supreme court, an expert in family law, and a pioneer for legal reform; has recently reintroduced the idea of a no blame divorce. To which many leading lawyers in the country and politicians have come to fully support and even say that this has been long overdue. But, what exactly does Baroness Hale mean by a “no blame” or “no fault” divorce? Divorces are often a painful time for both parties and they trigger deep emotions, and at times couples can forget that at one point they had a mutual respect for each other. There is only one ground for divorce: that a marriage has irretrievably broken down. But that breakdown must be attributed to one of five facts: adultery, unreasonable behaviour, desertion, two years’ separation with consent or five years’ separation without consent. Baroness Hale proposes that the first and second of these five facts be removed, this would essentially mean that people would not have to give reasons for the marriage failing, it could be simply stated that the relationship failed. The reasoning behind this is that with adultery and unreasonable behaviour, which are the most commonly used facts, blame is attributed to one party over another, fostering bad feelings on both sides.

Despite the overwhelming amount of support Her Ladyship has received for this, there are critics as well, and they argue that if these facts were removed it would essentially take away the responsibility and undermine the concept of marriage. Yet, Baroness Hale is not saying this, she is simply trying to make the divorce process less aggravated and lessen the “blame-shame.” She goes on to further explain that the whole process of divorce should actually be extended that, there should be a year of “cooling off” period. Throughout this period the couple would take the year to arrange or sort out their finances, property and make arrangements for any children. Immediately most people would jump to the conclusion that the period of separation is long enough and that couples should just end the marriage as soon as they can. But in reality divorces often take up to two years to finalise, what Baroness Hale is proposing would not make any difference in the length but it would take less time after the couple has completely arranged their assets. Lady Hale states that after a year of cooling off, then if the couple still wants to proceed then it will be easier for them to do so without having to find fault and arrange their assets since this would already be done.

Lawyers are calling this the “common sense approach” which they believe would reduce the stress of separating couples. In a way Baroness Hale is trying to put the humanity back into this process and saying that this idea, which she initially proposed over 20 years ago, is long overdue and that there must be some real changes in divorce. In addition to Baroness Hale and many lawyers being on board with this idea, so is the Government’s own Family Mediation Taskforce which has recently recommended that this be introduced. The Baroness simply asks why in this is a difficult period for couples, the law requires them to find fault in one another in order to be able to divorce, when simply saying that the relationship failed should suffice. The thought is that by removing the fault, this will help couples to look forward to their futures instead of looking back at the past, and it would help facilitate a focus on couples looking to the best interests of their children (if any) and themselves as well. Too often divorcing couples can get caught up in finding fault that they forget there are children involved and they must also plan for their future. So, in reality would it be such a bad thing to remove the blame, and have a no fault divorce?

I will end on this quote because I believe this is what Baroness Hale is trying to achieve by pushing for these new changes to the laws of divorce: “once you do embark upon the separation or divorce process, it is very important to remember three key things: be kind, be reasonable, be brief. Remember that this person will no longer be your spouse, but he or she will continue to be your co-parent, family member, and perhaps business partner in certain assets or entities.”