Divorce - should it be a 'blame game'?

by Carole Brennan

The Justice Secretary David Gauke has hinted that he may look at changing the law on fault based divorce.

In 1996 MPs passed a law bringing in no fault divorce, but that law was never implemented. Resolution which represents family lawyers has long campaigned for this change.

At present, couples are forced to allege things about each other that sometimes  they would rather not - otherwise they must  wait at least two years for a divorce. That means at present most divorce petitions are based on unreasonable behaviour or adultery – even if neither of these are actually true.

If you have both just drifted apart it means you can’t divorce for two years (if both parties consent), or five years if one party does not consent.

The reality of writing a list of unreasonable behaviour about someone is that when they read it they become upset; relations between the couple deteriorate and children get caught in the crossfire. No one wants that. Some people still think that there should be fault attached to a divorce petition. When you are angry, slinging mud at the other party feels like the right thing to do.

People will say, “Well it is a matter of justice”. Adultery in particular has always been a big issue for some people. They want to name and shame.  Experienced family solicitors will tell you that anger is a very destructive emotion and actions and words done in anger are usually at best unhelpful and at worse catastrophic. 

Over thirty years of practising family law tells me that people come out of a marriage much better if they try and deal with their anger another way than waging a very expensive legal battle. More importantly study after study shows that it is so much better for children if parents aren’t fighting. Family law is moving in the direction of trying to take out the animosity in such a difficult situation because long-term, it’s much more helpful to parties and particularly their children, and so this may be a good move on the government’s part.

Many other countries have a no-fault based system which allows a couple to separate mostly with a lot of pain, but the removal of blame in the legal arena allows couple to focus on the needs of their children and their financial positions.

Of greater concern to a lot of people is the court fee to issue a petition for divorce, which now stands at £550.00.

As a considerable number of couples don’t marry at all, the government should also look at their legal position as that area of law is in dire need of reform. Co-habiting couples basically have very few legal rights and those they do have are based on very ancient law.

The law therefore does not reflect modern society. Hopefully the government will review the whole of separation and divorce and improve the situation for couples who split up who do not need to have to wage legal battles at such a sad time.

Apart from the very welcome encouragement of mediation, the government have not looked at families as they are now but at least this Justice Minister is talking as though he knows reform is long overdue in this area.