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The government needs to be brave and introduce no fault divorce

Removing fault from online proceedings could ease the courts’ administrative burden and lower costs

21 November 2016

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Be brave and introduce ‘no fault’ divorce, family lawyers have told the government, twenty years after it was first legislated for – and then shelved – by parliament. The long-running debate over whether blame should be removed from the divorce process is reaching boiling point and those at the coalface are calling for change.

‘It’s just a battle that government doesn’t appear to have the will to take it on,’ Nigel Shepherd, chair of Resolution and head of family law at Mills & Reeve, told Solicitors Journal. ‘Political bravery to tackle it is lacking because of a fear it will cause a big stir among certain parts of the press. There really is no logical, legal, or social reason for not introducing it.’

Hazel Wright, a partner at Hunters, seemed to agree, citing ‘fears of a backlash from the conservative right and the church’ having left the government ‘shy’ to introduce a no fault element. But, she says, the time had come for change. ‘The heavens did not fall when same sex marriages were introduced; on the contrary we were among the leaders in the world to recognise this equality. Demanding that fault be alleged is contrary to all these principles,’ she said. ‘We are moving every further towards autonomy for individuals and stopping the state “enquiring into (wo)men’s souls” is the way forward.’

Under the Matrimonial Causes Act 1973, unless the court is satisfied a party has committed adultery, or behaved unreasonably, separating spouses must wait at least two years before the hearing of their divorce petition. Though part 2 of the Family Law Act 1996 (FLA) sought to address the ‘blame game’ and provide for no fault divorce, concerns were raised over threats to the institution of marriage. After a series of information meeting pilot schemes, and despite more than 100 amendments to the Bill, the government eventually concluded the provisions were ‘unworkable’ and part 2 was subsequently repealed.

While acknowledging the proposed system had its flaws and was more complicated than it needed to be, Shepherd said the principle of no fault divorce was an argument that was already won. Recent research, carried out by YouGov for Resolution and published in June 2015, found 52 per cent of divorce petitions were fault-based. Further, 27 per cent of divorcing couples who asserted blame in their petition admitted the allegation wasn’t true, but was nevertheless the easiest option.

In a bid to get the debate back on track, Conservative backbencher Richard Bacon MP presented a No Fault Divorce Bill to the Commons in October 2015. His ten minute rule Bill proposed an amendment to the 1973 Act that would require a joint divorce petition from both parties. Should the court be satisfied the marriage had broken down, the divorce would complete after one year (unless the High Court fixed a shorter period), allowing the parties to reconcile in the intervening period. Bacon’s efforts fell short.

Responding to the Bill, Conservative MP Sir Edward Leigh said: ‘The emphasis in recent years has been on strengthening marriage as an institution. Bringing in no fault divorce, while seeking to ameliorate one problem, would undermine that new appreciation by making divorce easier, and thus increasing the number of divorces.’

However, Tony Roe, solicitor and family law arbitrator at Tony Roe Solicitors, told Solicitors Journal that despite resistance, society would not ‘break down’ were no fault divorce to be introduced. ‘We are seeing growing pressure for change,’ he said. ‘Historically successive governments have not seen fit to introduce no fault. If indeed, this administration’s policy is to try to keep disputes out of court, in my view it would lead to less litigation and would be a more appropriate and amicable method of divorce.’

Marilyn Stowe, senior partner at Stowe Family Law, believes ‘savage financial cuts’ to the administration of family law has left divorce reform low on government priorities. ‘Fundamental change to divorce law is fraught with difficulty. What would replace the current law? Last time it was tried in 1996 too many cooks spoiled the broth and it failed. Marriage still is a vital institution to protect for many and no fault would be regarded as irreparably weakening it,’ she said. ‘Divorce reform is desirable but in this dire financial climate, no more than that. Far more important should be helping the man in the street negotiate the family law process especially with court closures and removal of legal aid.’

Reform of the law has many notable supporters. Lady Hale, the deputy president of the Supreme Court, has publicly backed removing fault from divorce on two separate occasions, suggesting a new system would reduce costs and ill-feeling between parties. The former president of the Family Division, Sir Nicholas Wall, and the current president, Sir James Munby, have also both called for fault to be removed as a ground for divorce.

Next year, Sir James will oversee the roll out of online divorce as part of the government’s £700m investment in the courts and tribunal system, the well documented aims of which is to reduce the Ministry of Justice’s administrative budget by 50 per cent by 2019/20. For Resolution’s Shepherd, the administrative benefits of a no fault divorce carried out online could be key to bringing about new legislation. ‘It is abundantly clear that if you have an online service, removing fault from the process will make it easier to operate what will be more of a tick box administrative exercise,’ he said. ‘A no fault regime will mean removing the need for judicial assessment of the evidence relating to it, which at the moment is required. The increasing number of litigants in person will also benefit from a simplified process.’

On 30 November, legislating for no fault divorce will be high on the agenda for members of Resolution who will be lobbying parliament to raise awareness of many issues affecting family law in a bid to influence government policy. For those MPs against the motion their resolve may be tested on an issue that is unlikely to go away anytime soon.

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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