I remember way back in the mists of time, when I first started practising family law, there was a school of thought pushed for a “no fault” divorce. The then shiny new Family Law Act 1996 introduced the idea of “information sessions” where separated couples could attend group video meetings about what would happen as a result of the marriage breaking down. Divorce would then follow almost automatically after the appropriate period of separation.
However, this seemingly simple solution to a difficult issue provoked a backlash, with accusations that it made it too easy for a marriage to be ended and the proposals disappeared into the long grass.
Despite commonly held beliefs to the contrary (yet more family law myths!), the reality is that under current law a divorce cannot be brought for “irreconcilable differences” or even because you both agree that it is over. Unless you are willing to live separately for a minimum of two years first, the only reasons you can use to bring a divorce are unreasonable behaviour or adultery, effectively pointing the finger and blaming the other person. There is no option if two people have simply fallen out of love and want to go their own ways. They have to throw mud.
This was beautifully illustrated in the media last week (Policewoman appeals her husband’s attempt to divorce her over the washing machine) when a husband listed a string of trivial reasons amounting to unreasonable behaviour in divorce papers, including that the fuse was taken out of the washing machine and the television aerial was moved.
This doesn’t really sit that well with the government’s insistence now on trying to resolve matters amicably through mediation where possible. It is almost standard practice now for family lawyers to write to the proposed respondent reassuring them that the allegations of unreasonable behaviour will be “toned down” and that they should interpret this finger pointing exercise as just a means to an end because the law makes us do it. Surely then it is now high time the rules were changed to avoid the need for blame?
The President of the Family Division, Sir Nicholas Wall has now re-visited the concept of changing the basis on which divorces can be brought, indicating he can see “no good reason” why a no fault divorce cannot be introduced. I agree. But it remains to be seen whether this time the practices and procedures necessary to give effect to such a change can be successfully implemented.
Family solicitor, Northamptonshire