8 January 2018

Time to end the blame game – why a ‘no fault’ divorce law matters

By Rob Colwell, Head of Family Law, Hayes + Storr.

The weeks between New Year’s Day and Valentines Day is a time when family lawyers find themselves inundated with new enquires. The frequency of separations at this time of year is well documented, evidenced further by research conducted by journalists David McCandless and Lee Byron – who scanned more than 10,000 Facebook status updates, confirming the steep rise in break-ups during this time.

When you apply for a divorce you’ll need to prove your marriage has broken down and give one of the following five reasons:

  • Adultery – your husband/wife had sexual intercourse with someone else of the opposite sex (we’ll be writing more about same sex marriage and civil partnerships later)
  • Unreasonable behaviour
  • Desertion
  • You have lived apart for more than two years and both agree to divorce
  • You have lived apart for at least five years – even if your spouse disagrees

It’s widely acknowledged by the legal profession that current divorce legislation is out of date in England and needs revisiting by Parliament. Currently, ‘unreasonable behaviour’ is one of the most common grounds for divorce in the UK. Petitioners are required to show that their marriage has become intolerable – and common examples of unreasonable behaviour include the refusal to get a job or contribute financially, lack of emotional support, violence and other forms of abusive behaviour.

Despite UK legislation requiring petitioners to show that the marriage has broken down on the grounds of ‘unreasonable behaviour,’ these allegations are not given much scrutiny by the courts. In fact, it’s not necessary to make lots of allegations against your partner. A short explanation is enough for the court to understand the marriage has broken down irretrievably. Getting divorced is a very upsetting and stressful time as it is, and it’s exacerbated by an outdated system which requires couples to pick sides against each other.

Britain’s top judge Baroness Hale has added her voice to those calling for ‘no fault’ divorce legislation to be introduced in the UK. Others in favour of the move include many people who work in family law and organisations such as Relate and Resolution. The latter is a national organisation of family lawyers – and of which I am a member – which is committed to non-confrontational divorce, separation and other family problems. At the moment, a number of states in America and some countries in Europe allow couples to divorce without allocating blame.

At the end of the day, those filing for divorce on the grounds of ‘unreasonable behaviour’ shouldn’t be misguided into thinking the bad behaviour of the spouse will lead to a more favourable financial settlement. This is a very common misconception. In reality, the grounds for divorce are (on the whole) irrelevant to the court, as set out in the Matrimonial Causes Act 1973 –which, in the vast majority of cases, will see the assets split according to need or other statutory criteria, regardless of who’s to blame. And if children are involved, their needs will be prioritised.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you’d like more information on any of the issues detailed in this article, please contact me on 01328 863231 or email rob.colwell@hayes-storr.com.