On December 17th 2015 the Law Commission published its scoping paper Getting Married, declaring that, ‘the law of marriage is out of date, inconsistent, and overly restrictive. Our family barrister Joanne Crossley agrees with Law Commissioner Professor Nicholas Hopkins, “our modern society deserves a clearer set of rules that gives all couples greater choice and certainty…”. A civilised society should arguably allow adults to make and implement their own decisions with minimum interference. That’s true for the end of the marriage just as much as the beginning.
It’s always difficult to explain to clients why two adults cannot decide to end their marriage without first laying blame. How can we encourage responsible, civilised separation if we have to kick it all off by saying ‘he started it’? It’s hard to persuade clients that it doesn’t matter what is said in the petition or who divorces whom. Our well-meaning attempts to minimise conflict can make the whole process seem farcical.
This position is all the more ludicrous when you consider that you don’t have to give any reason at all for getting married in the first place.
No Fault Divorce
There have been various campaigns by groups and divorce lawyers who want to see the divorcing laws and system updated. Currently, laws encourage couples to blame one another in favour of a quicker divorce, as without blame a couple must have separated for 2 years, and without blame or consent from both parties, it’s 5 years.
There are many downsides to the current system aside from unnecessary blame in that this need to blame can have an extremely damaging effect on relationships. Many divorcing couples have children involved and the blame culture can have an impact on their relationship whilst co-parenting. If this situation and blame can be avoided in situations where blame is not necessary, it seems sensible to do so.
What is No Fault Divorce and What Would it Look Like?
If a no fault divorce system is to be put in place, it will allow couples to end their marriage without a single partner needing to be held formerly responsible for the relationship breakdown. This would make divorce less of a Court case and streamline it to a much more administrative approach.
Support and Opposition For No Fault Divorce
There is, of course, always going to be opposition for such a change. Many argue that it will become too easy to divorce and couples will be quicker to agree on a divorce rather than try and work things out.
However, speaking in favour of no fault divorce is the argument that a lot of heartache and emotional turmoil can be avoided for couples who do not wish to place blame on one another for a marriage that may simply not work anymore.
The Ministry of Justice published a consultation paper named Reform of the Legal Requirements of Divorce on 15 September 2018. The consultation, which closes on 10 December 2018, asks for views on replacing the current divorce system with a Government-proposed change to remove the ability to allege fault and to also content, in other words defend, divorce.
We have to sit back and wait to hear the outcome of the consultation and we will soon find out if there are to be implemented changes to the current divorce process.