Before looking into the proposals that have been introduced regarding no fault divorces, it is necessary to understand the current position of divorce law in England and Wales. It may come as a surprise to many that, as it stands, there is only one ground of divorce in England and Wales. This ground is known as irretrievable breakdown and it must be evidenced by one or more of five facts as listed in the Matrimonial Causes Act 1973:
2. Unreasonable behaviour
4. Two years of separation and consent
5. Five years of separation
The first three of these facts are fault-based and the last two facts concern separation over two of five years, respectively.
Focusing more on the fault-based facts, these have been subject to wide-spread criticism and have even led to the Ministry of Justice publishing a consultation paper in September 2018 seeking views on replacing the current system of divorce.
Attempts have been made to reform this area of law; earlier attempts include Part 2 of the Family Law Act 1996 which, had it not been repealed, would have introduced the concept of no fault divorce and would have encouraged the parties to a divorce to attend ‘information meetings’ seeking to encourage reconciliation where possible. The Government labelled the provisions in the Act as ‘unworkable’ and so they were not implemented.
The proposals for divorce reform suggest the removal of the requirement of petitioners to give evidence of one or more of the five facts listed above and instead, introduce a new process of the petitioner giving notice of irretrievable breakdown. The proposals also seek to abolish the ability to contest a divorce as this is very rare, (only around 2%). However, the proposals do not aim to reform the process of divorce in its entirety as irretrievable breakdown would remain as the sole ground of divorce.
The introduction of no fault divorces has been supported by many, including senior members of the Judiciary and family law experts. A Nuffield-funded research project conducted by Professor Liz Trinder of Exeter University in 2017 argued that the use of fault in the divorce process may trigger or exacerbate parental conflict which consequently would have a negative impact on children and therefore concluded that fault should be removed from the divorce process in favour of the notification system. Baroness Hale, the president of the Supreme Court also supports the no fault divorce system; speaking in April 2018 she cites the study mentioned above and argued that the current law concerning divorce is ‘preoccupied’ with assigning blame which therefore creates unnecessary conflict between divorcing couples and prolongs proceedings. She responded to those who oppose no fault divorces as they ‘undermine commitment to marriage’ by stating that the current system promotes unfairness and does no more to deter divorce as the requirement to provide a reason for the breakdown of a marriage does not make people think twice.
by Rob Green, assisted by Alisha Ali