A Bill introducing “no fault” divorces in England and Wales has passed the first stage in the Commons by 231 votes to 16. To many, this may not seem ground breaking or relevant. However such attitudes ignore the potential fallout of “blame” at the commencement of the divorce process which is an integral part of our current system.
At present, in order to start divorce proceedings, one spouse must allege adultery, unreasonable behaviour or desertion, unless they have separated for 2 years. The only way you can obtain a divorce without the consent of your spouse is if you have been living apart for 5 years.
What in reality is the impact of this?
Even for those couples who have jointly agreed to divorce, analysing the reasons for the separation and whose “fault” it is can lead to set backs.
- The reasons for separation in a Petition on the basis of unreasonable behaviour can often cause offence.
- If and when such reasons are included, spouses will often be advised to “tone” these down, demonstrating that the process must be ripe for change.
- Any degree of tension within separation can impact upon the welfare of the children.
- Commencing a process without conciliation will inevitably increase costs.
- Commencing the process consensually may bode well for the ongoing financial negotiations.
- The present process enables one party to defend the divorce if the “facts” of the divorce are not agreed, leading to considerable delay and added costs.
How will this Bill improve matters?
The Divorce, Dissolution and Separation Bill will remove the facts “proving” the breakdown of the marriage, leaving the only ground being that the marriage has “irretrievably broken down”. It will also allow couples to apply jointly for a divorce where they have mutually agreed to separate. Furthermore it removes the option of one party contesting the divorce, which delays the process and adds to cost.
Justice Secretary Robert Buckland has said it will make separation “less traumatic” and make the legal process “less painful”.
Notwithstanding this, some MP’s state that the Bill is badly timed and will undermine the commitment of marriage. This ignores the reality that in England and Wales, 60% of couples rely on fault grounds within their petitions which adds to an already traumatic decision.
This Bill, if it is enshrined in law, will not make it easier for people to get divorced but it may make it slightly less painful.