The government has announced they will introduce no fault divorce. This is excellent news.
The current law was introduced in the 1960’s, and is set out in the Matrimonial Causes Act 1973. Society has changed hugely since then, but divorce law didn’t keep up. There is no longer a stigma attached to divorce. We recognise it’s sad, not what people hoped for, but it happens.
The current law has one ground for divorce – the the marriage has irretrievably broken down – and that will remain the same. At present you have to rely on one of five facts to prove that. The most common facts are adultery or unreasonable behaviour (the other 3 grounds require you to have lived apart for at least 2 years and it doesn’t suit most people to wait).
The problem is that marriages end for a combination of reasons. It may be one sided but often it isn’t. If a couple are at the point where they want to blame each, other it’s unlikely they would agree why the marriage ended or who was at fault. In practice this could mean a full blown court hearing where a judge has to hear evidence about “who did what” and decide what is true and what is important. This would be prohibitively slow and expensive and most importantly, pours fuel on the fire of a relationship breakdown when the couple need to be focusing on their children, or trying to agree a financial settlement.
This has lead to the current situation where as lawyers, we have to explain to people several times a day, it doesn’t matter who divorces who or what is written in the divorce papers. People understandably find this hard to accept or even believe. The current process isn’t fit for purpose. It has become a clunky, box ticking exercise, where the courts are trying to minimise the risk of it causing harm, but every now and again it happens. Think of poor Mrs Owens.
The proposed system will allow either person to start the divorce, on the basis the marriage has irretrievably broken down. There will be a cooling off period of 6 months to make sure this isn’t an impulsive step. The other person won’t be able to block the divorce. It reflects and improves on what has happened with the current system. It takes the best bits and removes the bad bits.
I remember the government trying to introduce this system in 1996! It has taken a very long time and a lot of campaigning to make this happen. The changes were blocked in the 1990’s because politically it was felt this undermined marriage, and would encourage people to divorce. This time round it’s hard to find a voice arguing against the changes. Even those with deeply held moral or religious or other beliefs seem to acknowledge the current law doesn’t achieve what they want. The main argument is that it will encourage people to divorce, but this hasn’t happened in Scotland (where no fault divorce was introduced in 2006). My view is that is could even support marriage. Marriage rates are plummeting, young people aren’t getting married, and maybe bringing the law up to date might help people reconnect to marriage.