It is widely believed that David Gauke, the Justice Secretary, will be shortly launching an official consultation on divorce reforms, including the introduction of “no-fault divorce”.
There has been a very vocal campaign over the last few years from Resolution, The Times newspaper, legal bloggers, and others for the Government to overhaul the current divorce legislation and to do away with the need for one party to apportion blame on the other in a divorce petition. According to divorce lawyers, the blame game can increase hostility between a divorcing couple and negatively impact on discussions about the couple’s children and the financial settlement. This criticism is backed up by The Finding Fault research report, which concluded that the current 50-year-old legislation is out of step with modern families and 21st Century life.
Current divorce law means that a couple must be separated for 2 years or more to start the divorce process if they do not wish to use fault in their divorce petition. If one party doesn’t agree to a divorce on the grounds of 2 years separation, then the other spouse is potentially faced with waiting for a period of 5 years of separation before being able to start proceedings. It is these long periods of waiting that force many couples into using unreasonable behaviour to enable them to start the divorce process sooner rather than waiting for those very long separation periods to complete.
Some couples understand that the examples of behaviour used in the petition are merely a means to an end and are able to agree on what examples are included in the petition. However, respondents often find themselves broadsided by extreme examples, sometimes fabricated, of their alleged behaviour. This is often true of petitioners who write their own petition without the advice or input from a solicitor. Reading these allegations can be incredibly distressing to respondents, and it is not unusual for them to be concerned that the accusations may influence future child arrangements or the financial settlement. Acrimony sets in, and an already difficult situation becomes amplified into one of complete hostility. That mutual hostility filters down to the discussions and communications about the couple’s children and finances. This is exactly what the no-fault divorce campaigners want to remove by introducing a divorce procedure where no fault is apportioned and couples can begin the divorce process without waiting to be separated for a number of years. No-fault divorce would allow couples to divorce with dignity.
There is another side to the misuse of “unreasonable behaviour” in petitions. This is where an abusive or controlling spouse uses the divorce petition to continue the abuse by making untrue or exaggerated claims about their spouse’s behaviour, often amplifying minor incidents into major ones with the propose of causing as much distress and pain to the respondent as possible. These often include allegations of financial mismanagement and poor parenting skills, often with the intention of making the respondent believe that the allegations will be used against them in child and financial proceedings. A no-fault divorce option would help discourage malevolent petitioners from using the petition as a vehicle for continuing their abuse of the respondent.
Divorce is already a very difficult experience for everyone concerned, and it is right that every attempt is made to keep matters as amicable as possible. In addition to changing the current law to introduce a true no-fault divorce option, more use of family mediation could also be promoted. Recently, the National Family Mediation's submission to the Government’s Post-Implementation Review of the 2014 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) said that “magistrates, judges, and court officials are bypassing the necessary process of getting the C100 and Form A paperwork signed by a mediator at a MIAM”. This is despite the fact that it is a legal requirement for applicants to attend a MIAM and have the form signed by a mediator prior to submitting the application to Court. National Family Mediation is urging the Government to implement “a more proactive government approach”, as well as a raft of other suggestions. You can view the entire submission on the NFM website.
Oratto would always urge anyone facing a potential divorce to obtain expert advice and guidance before beginning any proceedings. Our member solicitors have many years of experience and are knowledgeable in all areas of family law. For free, friendly initial advice over the telephone, call Oratto today on 0845 388 3765, or contact us to book an appointment.