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Introduce ‘no fault’ divorce, says leading judge

27 March 2012

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Current divorce laws are outdated and no longer reflect modern society, the President of the Family Division has said. 
Sir Nicholas Wall believes that a no fault divorce should be introduced as part of a review of legislation in order to bring it up to date. In a speech on Saturday in Leeds at the annual conference of Resolution, Sir Nicholas told the organisation of family lawyers that he saw “no good arguments” against no fault divorce. 
“At the moment, we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial. No doubt this has its roots in history. In the nineteenth century and for much of the twentieth, divorce was a matter of social status - it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the ‘innocent’ party,” said Sir Nicholas. 
“All that, I think, has gone. Defended divorces are now effectively unheard of. The allegations in a petition under section 1(2)(b) are rarely relevant to any other aspect of the process, and if used in proceedings for ancillary relief have to be separately pleaded, and even then are only relevant if stringent criteria are attached to them. 
“I grew up with the three Cs – connivance, collusion and condonation. All those have gone. It seems to me, therefore, that the time for no fault divorce has also come,” he said.
Sir Nicholas’s comments were echoed this week by Lord Justice Thorpe who said in his judgment in a case at the Court of Appeal that “our laws of divorce represent the social values of a bygone age”.
Giving his ruling in a divorce case, Lord Justice Thorpe lamented the fact that the minutiae of the 20-year marriage had to be raked over in such a “painful” way because divorce laws mean one spouse or the other must be shown to be at fault.
The Lord Justice was presiding over an appeal from Susan Rae over her husband’s application for a decree nisi. Alan Douglas Rae, had separated from Susan Rae in 2008. He was granted a decree nisi at Northampton County Court in June last year but Mrs Rae fought the decision.
She argued that the judge in the case had “elevated trivialities” which were part of “everyday family difficulties” to justify granting the divorce.
She claimed that “normal squabbling between husband and wife” had been magnified to the level of unreasonable behaviour. These included moving the television aerial, taking the fuse out of the washing machine and throwing away food Mr Rae had intended to use in his packed lunch.
Lord Justice Thorpe said he felt sadness at Mrs Rae's “complete inability to accept what has happened to her” , but a ruling that the marriage had broken down was the “only realistic outcome” . 

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