No Fault Divorce Pros and Cons

30 November 2017

By Head of Family Law, Solicitor Tracey Moloney

Under fresh calls by high-profile individuals for a “no fault divorce” to be introduced in England and Wales, changes to the divorce process in the UK could be just around the corner. One of the most prominent campaigners for no fault divorce is Baroness Hale, the most senior judge in the UK.

I am watching with interest to see how the discussion evolves, while considering what the introduction of a no fault divorce system could mean for divorcing couples in England and Wales. I’d like to take this opportunity to take a look at the divorce process as it currently stands, the implications of a reform and the key arguments from both sides of the no fault divorce debate.

What is the Current Process for Divorce?

Under existing divorce law in England and Wales, in order to be granted a divorce it’s necessary to prove that the marriage has broken down to a point where it cannot be saved. This needs to be proven by citing one of the 5 legally recognised reasons for marital breakdown: adultery, unreasonable behaviour, desertion, 2 years of separation or 5 years of separation.

This means that someone in the marriage has to be at fault or the couple will need to have lived separately for a considerable length of time, in order for a divorce to be granted. One person will need to begin the divorce proceedings, stating the reason for the marriage breakdown, and the other person then needs to respond, either agreeing or disagreeing with this statement. If they disagree, then the person who began the proceedings will need to provide more evidence to support their statement (such as evidence of how their spouse has behaved unreasonably, proof that they have been deserted, or evidence of adultery).

Getting a divorce England and Wales can take a considerable length of time. There are numerous factors which need to be considered and sometimes there will be joint assets or children that also need to be taken into consideration.

What Would No Fault Divorce Look Like?

Under a no fault divorce system, couples would be able to formally end their marriage without either person being held at fault. No fault divorce would be a more administrative process, rather than a Court procedure.

If a couple have naturally grown apart, or are separating amicably then there will not be a requirement to lay blame on either person. Nor would the couple need to wait until they have been separated for 2 years in order to divorce without anyone being held accountable.

What are the Arguments for No Fault Divorce?

Baroness Hale feels that there is a strong case for no fault divorce to be introduced into UK law. She believes that being able to say the relationship has simply failed, without holding either person accountable, could ease some of the stress and pain that couples often endure during separation.

She also believes that this process would make it easier for couples to settle the terms of their divorce, without getting caught up in long-winded, acrimonious legal battles in Court.

Other campaigners have suggested that the current process for divorce can cause the relationship between the divorcing couple to deteriorate even further, as one person dredges up and documents evidence of the other’s behaviour.

What Are the Arguments Against no fault Divorce?

On the other side of the coin, some people oppose the proposition to introduce no fault divorce to UK law. Some believe that making the divorce process easier could be damaging to the sanctity of marriage. There is an argument that couples may not think carefully enough before entering into a marriage if they feel that they can easily divorce if it doesn’t work out.

Some have cited other potential risks associated with making divorce more straight-forward and more accessible, feeling that this could lead to more couples opting for divorce as soon as difficulties arise instead of taking the time to try to save their relationship.

If someone has been subjected to unreasonable behaviour in a marriage or their spouse has committed adultery, then there is also an argument that the offending spouse should not have the option of getting a divorce without being held to account.

In place of a no fault divorce option, it has been suggested that there could be an opportunity instead to educate people on the implications of marriage and the financial risks that they could face if the marriage breaks down. This could encourage people to consider the true gravity of the marriage contract and think more carefully before tying the knot, possibly negating the need for an easier divorce option.

What the Future Holds

The truth is that there can never be a “one size fits all” approach to divorce, which makes the matter of amending divorce law all the more delicate. The infinitely complex nature of relationships means that every marriage breakdown brings with it its own unique challenges.

Divorce can be a difficult and heart wrenching time for families, there are often highly charged emotions on all sides and lives can be turned upside down. The sensitive and complicated reality of divorce means that any changes that are made to the law are likely to take a considerable amount of time to implement.

We may see a no fault divorce process implemented in the future, or it may be decided that this is not the right approach. In the meantime, I will observe the “no fault divorce” debate with interest.

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