Published: 15 April 2015
Senior Judge Baroness Hale of Richmond has spoken out against current divorce law and has called for 'no fault' divorces to remove the need for one party to take the blame in order for a divorce to be granted.
Current legislation enforces divorcing parties to choose one of five reasons for their breakup, which include adultery, desertion for two or more years, two years' separation with consent, five years' separation without consent and the most commonly used reason, unreasonable behaviour.
However, Baroness Hale, the Supreme Court deputy president, has said that she wants to see more amicable marital disputes so that one person doesn't need to be held at fault and she also wants separating couples to take more responsibility for making arrangements for their children and the families' finances before proceeding with divorce.
Baroness Hale said, "We should make it take longer to get a divorce and encourage people to sort out what happens to the home, children, money before, rather than after, they get a divorce."
She also suggested that couples are granted a 12 month 'cooling off period' after deciding to end their marriage in order to give them adequate time to get their affairs in order and to make any necessary arrangements.
The concept of a 'no fault' divorce removes the need for one party to be accountable for a fault leading to the breakdown of the relationship. Instead, it allows the person filing for divorce to give any reason that is honoured by the government or state, such as 'irreparable breakdown of the marriage' or 'irreconcilable differences'. If a person files for a 'no fault' divorce, the other party cannot object to the petition as this can be viewed as an irreconcilable difference by the court.
'No fault' divorces are quite common in the US and in other countries around the world but at present they aren't used by the divorce system in England and Wales. The only exception to our fault based system is on the grounds of 2 years separation with consent, however, this requires that the other party agrees to the divorce petition in writing, otherwise the divorce cannot continue any further.
Critics of our current legislation state that it encourages recriminations as divorcing couples are encouraged to cite unreasonable behaviour or unfaithfulness as the reason that their marriage has broken down.
Baroness Hale has been the driving force behind 'no fault' divorce and campaigned for it to be introduced in England and Wales more than 20 years ago, however, the proposal was thrown out by MPs as they thought that the removal of fault would undermine the concept of marriage and take away peoples responsibility for their actions that may have lead to the breakdown of their marriage.
Chairman of the Marriage Foundation and former High Court judge Sir Paul Coleridge backed Baroness Hale and her calls for an overhaul of the current divorce system saying, "Lady Hale, a complete expert with decades of experience across this whole field, is entirely right."
"Our current system which pretends to be fault-based is in practice and reality no such thing. The fault is largely invented to get a quick divorce, a hangover from pre-1970 days which is manipulated by lawyers and parties."
Just less than 12 months ago, senior family judge Sir James Munby also backed 'no fault' divorce, arguing that it could be handled by a registrar as an administrative task, similar to the registering of births, deaths and marriages.
He announced in a news conference that 'no fault' divorce would "bring some intellectual honesty to the system" and that the idea of 'divorce by consent' seems to work in other countries. He also doesn't believe that it would lead to a rise in divorce rates.
Sir James said, "The reality is that we have, and have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce."
"If they're able to establish the grounds for divorce, which it is very easy to establish, the process is essentially a bureaucratic, administrative process, albeit one conducted by a district judge."
If your relationship or marriage is on the verge of a breakdown, then the team at K J Smith Solicitors can help. To find out more or to arrange a free 45 minute initial consultation, please contact our team today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor) or 01256 584000 (Basingstoke) or email firstname.lastname@example.org .