Emily Francis For Avadis & Co. Solicitors
4/1/2016
On the 13th October 2015 Conservative MP Richard Bacon instigated a 10-minute motion to be debated in the House of Commons. The Bill proposed that a divorce or dissolution should be permitted where each party to the marriage or civil partnership makes a declaration that it has irretrievably broken down. At the first reading the motion was passed; the second reading did not go ahead due to time constraints and will now be heard on the 22nd January 2016. If the Bill is passed it will add a ‘sixth fact’ by which irretrievable breakdown could be proved: both parties would declare irretrievable breakdown, followed by a 1-year cooling off period before the decree absolute is made.[1]
As the law currently stands, parties seeking a divorce must prove ‘irretrievable breakdown’ based on one of five grounds: adultery; unreasonable behaviour; desertion; living apart for two years; or living apart for five years. The first three grounds are fault-based whilst the ‘living apart grounds’ require both parties to agree to the divorce (for two years) or a wait for five years where one does not consent. This causes complications for couples who wish to separate absent of fault as they will have to wait up to five years for the divorce to go through, during this time they are not financially independent and cannot seek access to financial orders so must continue to cohabit in a far from amicable situation.[2] The organisation Resolution has found that this had led 27% of divorcing couples make false allegations to the court in order to rely on the faster fault grounds. [3]
This has led many family law experts to support the proposed changes: Resolution chair Jo Edwards commented that the current approach does not help to save marriages but merely escalates conflict,[4] and that removing fault would help many couples to reach a dignified conclusion and move on with their lives. Members of the judiciary also agree: Baroness Hale believes that the current requirements to assign blame should be abolished and that the current system leads to an atmosphere of conflict that does not the resolution of matters concerning finances and children. No-fault divorce would encourage parties to look to the future and consider their own and their children’s needs to establish stability after breakdown.[5]
However, some believe that the continued existence of the fault ground would mean that the problems of assigning blame continue. Mr Bacon himself highlighted that the proposals would not, and do not aim to, make divorce easier: the new ground would enable divorce in one year whilst fault-based grounds are still shorter at five months. Some therefore argue for this approach to go even further: Resolution’s Manifesto for Family Law,[6] seeks to abolish all fault-based grounds and replace this with a 6-month consideration period after notice of irretrievable breakdown, this would require the consent of only one party. Similarly Part 2 of the Family Law Act 1996, which was never implemented due to perceived ineffectiveness in saving marriages, would also have abolished all fault grounds and replaced them with ‘information meetings’ and a 9 month period for reflection. Such changes could go even further to removing the atmosphere of blame.
This shows that the changes proposed by the Bill are relatively modest, aiming to make resolving the problems of divorce easier, not to make divorce itself easier.[7] Nonetheless, there are concerns that such a change could cause a spike in divorces.[8] Overall such concerns lack true support: there are multiple studies showing such a change would have no, or merely a temporary effect alongside a change in social attitudes.[9] The greatest indicator of what change could occur comes from the Scottish experience: in 2006 the Family Law (Scotland) Act[10] reduced the separation period from two years to one where there was consent and from five years to two years where the respondent opposed. Whilst there was a short-term spike in the divorce rate, within two years it had stabilised and returned to its previous downward trend.[11]
The Scottish experience is unlikely to fully align with that in England and Wales as Scotland has used a ‘simplified procedure’ since 1982. This was only ever available for the two separation grounds, therefore the fault grounds were previously only used by the minority. In contrast, the quickest route to divorce in England remains the fault-based provisions, hence their popularity. It is therefore unlikely the change would result in anything more than a short term spike as some two-year separation petitions are brought forward by a year. After this time the Bacon proposal is unlikely to impact on the divorce rate but would provide an alternative option for could to divorce relatively quickly “without any requirement to throw mud at each other”.[12]
[1] http://www.familylaw.co.uk/news_and_comment/baroness-hale-of-richmond-calls-for-no-blame-divorces#.VopBVl68ouM
[2] http://www.familylaw.co.uk/news_and_comment/resolution-s-manifesto-for-family-law
[3] http://www.familylawweek.co.uk/site.aspx?i=ed151976
[4] http://www.solicitorsjournal.com/news/legal-profession/courts/22443/infidelity-should-not-be-marriage-breaker
[5] http://www.familylaw.co.uk/news_and_comment/no-fault-divorce-where-next#.VopAul68ouM
[6] http://www.resolution.org.uk/familylawmanifesto/
[7] http://www.solicitorsjournal.com/news/family/family-proceedings/24195/courts-are-deliberately-misled-quarter-divorce-petitions
[8] http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm151013/debtext/151013-0002.htm#15101362000001 – Sir Edward Leigh at the 1st reading
[9] http://www.familylaw.co.uk/news_and_comment/in-anticipation-of-a-temporary-blip-would-a-change-in-the-divorce-law-increase-the-divorce-rate#.VopBNl68ouM
[10] http://www.legislation.gov.uk/asp/2006/2/crossheading/divorce
[11] http://www.gov.scot/Resource/0048/00482433.pdf
[12] http://www.telegraph.co.uk/news/11929622/MP-says-couples-should-be-allowed-to-apply-for-no-fault-divorce.html