No-fault divorces would help maintain the mediation-based approach lawyers have developed
Sir Nicholas Wall, president of the High Court Family Division, recently announced that in his opinion the time had come for ’no-fault’ divorce. Many specialist family lawyers will agree. The requirement to apportion blame is outdated and counter-productive in the setting of the overall proceedings.
This subject has been debated in the past. It was one of the recommendations leading to the introduction of the Family Law Act 1996, but was eventually shelved. The opposition to no-fault divorce has always been that it would make divorce too easy and undermine the importance of marriage and family life.
While this might seem a reasonable argument, we need to look at how couples actually deal with divorce and, at the same time, what the consequences of continuing to apportion blame are.
A couple who reach the conclusion that their marriage has broken down irretrievably want to move on with their lives. They want finality and certainty - often achievable only within the remit of the Matrimonial Causes Act 1973 and therefore requiring the issue of a petition.
On reaching the solicitor’s office they are told that unless they can give several examples of behaviour or can prove adultery during the marriage, they may not be able to get divorced for two years. Therefore, unless they can reach an agreement, the action they can take to resolve the financial aspect of their separation is limited.
In the vast majority of cases a client will go away, recall some incident and file for divorce regardless. Having issued proceedings they are told the petition must be sent to their spouse in advance of being filed with the court so they can object - the intention being to ensure that proceedings are conducted with a conciliatory approach at all times.
As if that is not sufficiently contradictory, they are then asked to consider their financial position. They start to recount their spouse’s behaviour, only to be told this is irrelevant because the court is not going to be interested in how the marriage came to an end or who was to blame. By now, the average client has lost confidence in the process.
There is, of course, a serious note to this. The profession has worked hard to develop a mediation-based approach. Our ability to encourage clients to adopt this approach can be hampered severely by the fact that in the first meeting we ask them to recount incidents of behaviour. These may be incidents long-forgotten and which invariably play no further part in the divorce process, yet the fact that the client is asked to recall them can put the mediatory approach at risk from day one.
Fault serves no real purpose. It threatens the smooth running of a mediatory approach and is outdated.
Would a change result in an increase in divorce numbers? In my view, no. If a couple have decided the marriage is at an end, in my experience they will end it one way or another. Surely, in those circumstances, the risks to the mediatory approach outweigh the risk of significantly increasing the number of divorces.