It has long been felt that the law of England and Wales is deficient in that it does not allow for so-called ‘no fault’ divorce. Media commentators and high profile lawyers, including some senior judges, have been calling for the law of divorce to be revamped to allow for a less adversarial approach to private family matters.
Couples divorcing in England and Wales currently have to base their divorce on one ground – that the marriage has irretrievably broken down – supported by one of five facts (adultery, behaviour, desertion, 2 years separation with consent or 5 years separation with no consent required). In order to avoid waiting a number of years for a divorce, the couple, or at least one of them, must apportion blame upon one party, placing the ultimate blame for the marriage breakdown at their feet. It’s no surprise to learn that this does little for post-marital harmony; maybe not such a big problem for a couple who can walk away from one another entirely but if there are ties that remain, such as children or finances, this can be disastrous.
Asking a couple who have simply fallen out of love to allocate blame can rancour with the party who is in reality ‘innocent’ and can turn a straight-forward on-paper divorce exercise into bad feeling that can linger for years, harming the couple’s changes of moving on and/or co-parenting effectively.
Richard Bacon MP has recognised this and introduced a Private Members’ Bill to Parliament. The No Fault Divorce Bill 2015-16 will receive its second reading in the House of Commons on 22nd January 2016 before proceeding to the Commons Committee stage.
The bill, if enacted in its present form, would allow for parties to issue a joint petition with a corresponding provision being added to the relevant Civil Partnership law. Both parties would have to declare independently that the marriage had irretrievably broken down but would not be required to state a reason or list particular behaviour that had caused the breakdown.
One point worth noting though, the current wording of the bill requires a period of 12 months to elapse between the penultimate and final stages of the divorce (decree nisi and decree absolute, respectively). The current waiting period is just six weeks. If one of the couple were to die during the 12 month period, in the absence of a will, their spouse would stand to inherit their property.
Previous attempts to introduce a ‘no fault’ provision into English divorce law have foundered but is the time right for Mr Bacon’s bill? We hope so. Far too many divorces are tainted by having to apportion false blame to one party. But will the bill pass through parliament smoothly? Perhaps not – there are many parliamentarians in both the Commons and the Lords with very traditional – some might say outdated – view on divorce, and in any case, there are still a number of stages to be passed before the bill moved to the House of Lords where it will undergo another five stage review process.
You can read more about the bill’s progress through parliament here:
http://services.parliament.uk/bills/2015-16/nofaultdivorce.html