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Hannah Gannagé-Stewart

Deputy Editor, Solicitors Journal

No more blame game: the end of 'unreasonable behaviour' divorces

No more blame game: the end of 'unreasonable behaviour' divorces


No-fault divorce will help reduce conflict and speed up family proceedings, says David Kirwan

After a long and arduous battle by campaigners, it looks as though no-fault divorces are finally going to be adopted by the English legal system. 

The move is long overdue. With the current grounds for divorce dating back to the Matrimonial Causes Act 1973, divorce laws are woefully out of date when it comes to meeting 21st century demand.

Indeed, many people were horrified when they realised just how unfit for purpose these laws were during Owens v Owens, which forced wife Tini Owens to remain married to her husband until 2020.

There is no question that having to shoehorn the reasons for the breakdown of the marriage into one of just five available choices – adultery, unreasonable behaviour, desertion for two years, separation for two years when both parties consent to the divorce and finally separation for five years – is an unnecessary constraint.

When the periods of separation are not available, and if there is no suggestion of infidelity, the only option left for those wishing to start proceedings is to blame the other person’s unreasonable behaviour. 

For many already unhappy couples, the need to apportion blame to one party simply adds rocket fuel to an already incendiary situation as it can involve racking up matters which are not currently an issue between the spouses, to create significance where previously there was none. 

That’s not to say that attempts to change the situation haven’t previously been made. In fact a new provision for no-fault divorce actually made its way into the Family Law Act 1996, but was never put into effect and was later repealed. 

So, family lawyers across the country voiced a collective cheer when, following the consultation he launched last summer on divorce law, justice secretary David Gauke confirmed last month that he would bring in legislation enacting the ‘no-fault’ reform in the next session of parliament. 

While the move is by no means an antidote to the stress and turmoil of divorce, the positive effects this will bring to warring spouses and solicitors alike cannot be overestimated.

Heat off

Where the current legislation actively promotes dispute, this new enactment should take the heat out of the situation, allowing the couple to make ‘the irretrievable breakdown of a marriage’ the sole grounds for a divorce. 

It is believed that removing that source of conflict will be particularly beneficial to children who, according to a survey commissioned by Resolution in 2012, are often left struggling with the emotional impact of their parents’ divorce. 

The study showed that around 100,000 young people see their parents separate every year, with two-thirds of children whose parents divorced reporting that the break-up had affected their GCSEs, while one in eight turned to alcohol or drugs and one in three experienced eating disorders. 

Moving the focus off the question of who is to blame and on to the issue of child arrangements and financials will give spouses the opportunity to find their way around their new model of co-parenting, without having to simultaneously deal with the pressure of working out who should be bestowed the honour of being ultimately responsible for the divorce. 

Removing the need to apportion blame should help solicitors by speeding up the cases too, pushing them through the courts more quickly, allowing us to resolve the finances so the couple can move on with their lives – and we can continue through our workload. 

Much as it might surprise those outside of our profession, very few solicitors actually relish dramatic, dirty washing-airing arguments. 

Our family law team would much rather get on with the business of securing both responsible child arrangements and a fair share of the finances than become embroiled in a war of ‘he said, she said’ words as each party tries to apportion blame. 

At the end of the day, finding a decent resolution is where the satisfaction lies; not in helping the client to find major faults in their marriage that, at the point of separation were often little more than minor irritations.

David Kirwan is managing partner at Kirwans