Ending the Divorce Blame Game
Stuart Duncan a family lawyer, believes we are overdue a change in the law which will allow couples to divorce with minimum conflict.
The law affecting families in England and Wales is changing. Since legal aid was withdrawn from family law cases in 2012, resolving disputes amicably has never been more important. An increasing number of people are having to navigate complex legal rules without legal support and at one of the most difficult times of their lives.
Our current divorce laws are not helping, as they effectively encourage separating couples to blame each other for the breakdown of their marriage.
At the moment a couple cannot agree to a divorce unless they have been separated for more than two years. In the majority of cases one person has to blame the other for behaving unreasonably or committing adultery to obtain a divorce.
This can create unnecessary conflict and make it harder to reach agreement on more important issues such as their children and finances.
As lawyers, we can end up spending several months arguing about who is responsible for the marriage breakdown when it would be more productive to focus on other issues.
We encounter a large number of people who would like to divorce amicably but cannot do so under the current system.
The Family Law Act 1996 was supposed to introduce no-fault divorce but was abandoned by the Blair government.
There is now growing consensus that people should not have to blame each other to end their relationship.
The Law Commission, tasked with reviewing and recommending reform, supports no-fault divorce, as do a number of Family Division and Supreme Court Judges. The President of the Family Division believes that no-fault divorce would ‘bring some intellectual honesty to the system.’
He says, ‘a District Judge has to go through the ritual of assessing whether the cited reason for a divorce is acceptable when both parties often agree that it is… we have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce… the process is essentially a bureaucratic, administrative process, albeit one conducted by a District Judge.’
Resolution, an organisation of 6,500 family lawyers and other professionals, believes that all family matters should be approached in a constructive and non-confrontational way. In a recent survey, over 90 per cent of members agreed that no-fault divorce should be available to all separating couples. A recent campaign gathered significant support on social media and lobbied MPs for a change in the law.
Many other countries around the world – including Australia, the United States, and Spain – have already introduced no-fault divorce. It remains to be seen whether we will join them.