Sensible separation

In an age of modernity, where being up to date is seen as so vital, it seems incongruous that the procedure for divorce in Britain is so outmoded. While Scotland and England have different legal systems and different divorce laws, they share the common theme of a divorce regime that still has 'fault' as the underlying reason and justification for the divorce.

The current process for divorce was initiated when Henry VIII began his 'great matter', his divorce from Catherine of Aragon and his subsequent infamous progression through six wives. Since then, it has been constantly modified '“ giving men and women equal opportunity to apply for a divorce, and most recently being applied to civil partnerships.

However, there are still problems with the process. One issue is that if you are at the end of your marriage but have not been living separately from your spouse for two years (or one year in Scotland) you can only get divorced if one spouse blames the other for the split. There are many people who want to do this, perhaps to release anger and point the finger. But there are also many couples for whom the blame game is simply unhelpful.

Many family lawyers offer mediation and collaborative law to take clients more amicably through the divorce process. If adultery is cited on the petition, there is encouragement not to name the third party involved. Counselling can be offered to clients, either as a couple or simply to help an individual work through the emotions that divorce often precipitates. All these methods are used by family lawyers to reduce animosity between the parties. But the law lends no such helping hand. It places too much emphasis on fault and does not reflect the social reality of divorce.

Ending the blame game

Marriages can break down for a host of reasons, but the reality is that most breakdown for one of two underlying reasons: either the parties were incompatible from the start and should never have married, or that as the marriage progresses husband and wife simply drift apart. The breakdown of a relationship is a sad event; one or often both of the parties will be hurting at the collapse of the marriage. Why shouldn't the law that finalises their separation not help reduce the hurt in the process, rather than give one party the opportunity to cast the first stone, blaming the other's conduct for bringing the marriage to an end and leaving oftentimes a very bitter legacy?

There are supporters of the view that introducing a 'no-fault divorce' option undermines the institution of marriage. However, the point of the regime is being missed by those rejecting it. The people who might use a no-fault option are already able to get a divorce, but to do so one of them has to blame the other. A no-fault process would remove this need, reducing at least some of the acrimony between the splitting partners, decreasing stress and emotional upheaval. This, in turn, should help any children involved during the process and would increase the potential for a sensible, constructive relationship to be maintained between the parties after the divorce is finalised; again, benefitting the children. There is a clear correlation between the level of acrimony and the costs of the divorce. The less acrimony, the more likely it is that the divorcing couple will be able to resolve all their differences in a quicker and cheaper manner.

In 2006, the law of divorce in Scotland was reformed. Unlike the radical changes contained in the (subsequently repealed) Family Law Act 1996, the Scottish proposals were much more modest. The period of separation for a consent divorce was reduced to one year. The period of separation for a non-consent divorce was reduced from five years to two years. Despite these changes, the social fabric in Scotland remains intact. The institution of marriage retains its special significance. There has been no explosion of couples seeking divorce on demand. What has happened, however, is that fewer parties are divorcing on fault based grounds, thus helping to reduce the acrimony.

In both Australia and New Zealand, the sole ground for divorce is irretrievable breakdown of the marriage which can only be established by a period of separation (one year in Australia and two years in New Zealand). Sweden and Finland have a combination of no-fault grounds based on giving notice, followed by a period of reconsideration in some circumstances and a ground for divorce based on a period of two years' separation

These and other jurisdictions already offer a no-fault divorce option. Yet, here in Britain we cling to a system rooted in Henry VIII's political needs and the moral universe of the 16th century. It is high time for both England and Scotland to catch up with reality and allow couples the option to divorce with decency. Surely less blame can only be a positive thing?

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