Baroness Hale has recently shown her support to the calls for the introduction of a no fault divorce in England and Wales, and she is not alone! Many practitioners have also expressed that they would favour a no fault divorce process. It seems that it is the general consensus that the move would be a ‘common sense approach’ to take.
As it stands, to obtain a divorce, in the absence of being separated for 2 years, a petitioner would have to cite either adultery or unreasonable behaviour as the reason for the breakdown of their marriage. I personally believe that no fault divorces could have the potential to remove a degree of acrimony from the proceedings. Unfortunately, the particulars of behaviour in fault based petitions can often enflame the atmosphere between the parties which inevitably has an effect on how the future proceedings in relation to the finances and/or children are conducted. Perhaps removing the blame element would encourage parties to remain amicable and work together towards reaching agreements.
Indeed, Resolution have commented and stated that the introduction may reduce the likelihood of cases litigating. They suggested that it may also “facilitate a constructive focus on future arrangements and responsibility in the best interests of any children”. They went on to say that a no fault divorce would be beneficial in other way as it would allow “parties should be free to achieve financial certainty quicker than they do now”.
However, on the other hand, it has been argued that the introduction of a no fault based divorce may have the potential to increase the numbers of people divorcing. At present, the importance of the sanctity of marriage is reflected by the law. Parties cannot divorce in the first year of marriage and must thereafter wait two years or otherwise rely on adultery or unreasonable behaviour. It may be the case that removing the fault element would somehow dilute the significance placed on marriage by making divorce to readily accessible.
That being said, the reality is somewhat juxtaposed to the underlying principles of the law. People who are not able to obtain a divorce on a mutual footing (2 years separation with consent) either end up living separately and waiting for those two years to pass or decide to one of the fault based facts, when they otherwise would not have done so. One must bear in mind, that just because people are not divorced…. It doesn’t mean they will stay together.
I would be interested to see what you, the readers, think. After considering the potential effects of removing the blame, I believe that costs would be saved, court appearances reduced and relationships given the chance to remain amicable!