Recently, the ‘no-fault’ divorce bill was given a second reading in Parliament which raises the question, will ‘The Blame Game’ commonly played by divorcing spouses soon come to an end?
For those who aren’t sure what ‘no-fault’ divorce entails, it could mean that spouses may soon be able to file for divorce without having to point fingers and assign blame at each other in order to prove that there’s been a marital breakdown. Under the current divorce laws, spouses may only file for divorce in accordance with one of the statutory grounds for divorce which are: adultery, unreasonable behaviour, desertion, living separately for 2 years (with agreement) or 5 years if your former partner does not agree. In doing so, there is an onus on spouses to provide evidence to the courts to prove that they have a case for divorce. Generally, this often results in spouses exerting a lot of energy into gathering evidence against each other which only prolongs the process of getting a divorce.
The bill proposes to “make a provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts”. (To track the latest developments of this bill – see http://services.parliament.uk/bills/2015-16/nofaultdivorce.html
The wording of the proposal raises another interesting question, can a spouse make an application for a no-fault divorce unilaterally, without the other spouse having to file as well? Before we examine this question, let us consider the debate for and against no-fault divorce.
Advocates in favour of no-fault divorce often cite the following reasons why it would be beneficial to have no-fault divorce as an option available to divorcing spouses:
• Reduces burden on the courts. It has been argued that the number of court cases on the docket could decrease if spouses opt for the no fault divorce option. This would in turn result in a decrease in legal costs and lead to a more efficient way to deal with divorce.
• Shift in focus from fault to parties’ well-being and privacy. It would limit the need to have your family’s private affairs made public in court proceedings, especially in cases where the marriage broke down because of adultery or abuse.
• Better allocation of legal time and resources. It would allow parties to spend more time and resources on the areas of divorce proceedings that require it such as financial discovery, custody arrangements, etc.
Conversely, opponents against no fault divorce raise the following concerns that would need further consideration:
• Denial of day in court. It can be noted that some feel that it is helpful for spouses to have their time in court to help process the end of their marriages. It may help a grieved spouse have their chance to be heard or their concerns about their spouse’s wrongdoing validated by having the opportunity to speak out in court.
• Not in the best interests of children. Some believe that the no-fault divorce option is not ideal where child custody matters are concerned as it may result in a more equitable arrangement made by the courts when this may not be what one parent wishes.
• Domestic abuse cases. In some cases, such as those involving domestic abuse, it is relevant for facts and evidence such as the events or circumstances of the abuse to be made available to the court so that the judge can make the necessary orders for the protection of spouses and/or children.
• One-sided divorce. Since no-fault divorce is often initiated unilaterally first, what if the other spouse doesn’t want a divorce and would prefer to try marriage counselling? They mightbelieve that marriage should not be so easy to exit.
Potential Impact of No-Fault Divorce in UK
In short, it’s best to interpret the second reading as a sign that there may soon be another mechanism available for some couples to use to get a divorce. Of course, what’s important to note about no-fault divorce is that, as stipulated in the proposal bill, couples have to mutually agree to elect this option.
Accordingly, it’s safe to predict that courts would not likely accommodate a unilateral application for no-fault divorce. In addition, we can infer that couples should also have their child custody and financial arrangements, if applicable, sorted out amicably before courts would be in a position grant them a divorce. Yet, divorce is far from simple and it is rare to find couples who can agree on these two issues. Therefore, it is likely that ‘The Blame Game’ will continue to exist for most divorces. However, it is plausible to predict that the no-fault divorce option might be a popular choice among same-sex couples. This is because it offers a quicker alternative for same-sex couples whose relationship broke down due to adultery to choose to file under no-fault divorce, since adultery is a ground that cannot be proved to have occurred between couples of the same-sex.
If you any questions about no-fault divorce, please contact Grayfords and follow us on Twitter for more updates.
by Pooja Sihra
Pooja is a guest blogger for Grayfords. Pooja is an international, post-graduate LLB candidate studying at City University London. She received her BA (Hon.) in Law and Society/Sociology in 2009 as well as a Master’s in Public Policy, Administration and Law in 2013 from York University in Toronto, Canada. Her interest in family law developed after navigating the challenges of acting as an estate trustee without a will in a family matter.