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The Current State of the Divorce System


In recent years, there has been an increase in calls for a change to the divorce process in England and Wales. The current law, ruled under the Matrimonial Causes Act 1973, has been criticised for forcing couples to find a fault with their marriage, or to wait for a considerable amount of time to satisfy the court. These grounds are:

  • Adultery
  • Unreasonable behaviour
  • Desertion for two years or more
  • Two years’ separation with the other party’s consent
  • Five years’ separation without the other party’s consent

The current grounds have been questioned because of the animosity they can create as one spouse is forced to lay the fault of the marriage breakdown on the other. This often results in false claims being put forward for a divorce as research, carried out by YouGov on behalf of Resolution, suggests that more than 27% of couples who have cited unreasonable behaviour admitted to doing so falsely as it was the easiest way to get a divorce.

A survey of over 350 participants carried out by the family law team at Lupton Fawcett showed that over half of participants (54%) agreed with petitioning MPs that the current five grounds for divorce were not enough to cover all the reasons for a breakdown in marriage.

 
Interestingly, when asked to describe what divorce meant to them, respondents were alarmingly negative, with seven out of the ten most popularly associated words being largely negative. The top five most popular responses were ‘hard’ (55%), ‘expensive’ (54%), ‘the end’ (43%) and ‘hurtful’ (38%), while the only positive description to feature was ‘a new start’ with 48% of participants choosing to describe divorce in this way.

‘No-fault’ divorce

South Norfolk MP Richard Bacon has requested to bring in a bill that allows couples to divorce without apportioning blame. This will allow more time to be spent reflecting on whether divorce was something both spouses wanted for themselves and their children. The first reading was passed on 13th October 2015 where he described divorce as a ‘tragedy’ before adding:

“It would be better for us all if there were more stable and successful marriages and, as a consequence of that, fewer divorces. Indeed, just as the wedding ceremony states that a marriage is not to be taken in hand ‘unadvisedly, lightly or wantonly’ but rather ‘reverently, discreetly, advisedly’, so, at least in my opinion, should divorce only be countenanced in the same way, after the most profound reflection.”

The law has provided for ‘no-fault’ divorces before under part two of the Family Law Act 1996, however, this was never fully implemented due to a lack of enthusiasm and opposition. At this time, it was intended to save saveable marriages and reduce the distress brought on by the conflict of proceedings.

More than one reason for a marriage ending

Changing the law to allow divorces to go through without fault will allow for mutual separation, which matches the commitment two people make when they get married. This was also a suggestion made by a respondent in the survey: “You should just be able to dissolve a marriage as you don’t have to give a reason to get married”. 

As mentioned above, the majority of participants believed that the current five grounds for divorce do not cover all the reasons why a marriage comes to an end. Respondents stated that marriages end because married couples simply ‘fall out of love’, ‘drift apart’ or become incompatible, which strengthens the idea that introducing ‘no-fault’ divorces will allow for more amicable divorces. It would also help improve future relations between both parties, which would allow matters involving children to be resolved with their best interests in mind. This will reduce the burden on the courts as it will mean there is more chance of settlements being made out of court. 

Despite a general consensus that the five grounds of divorce do not provide enough reasons for a marriage breaking down, the survey did reveal concerns for the introduction of no-fault divorces. Some 30% of participants suggested that if there was a ‘victim’ involved, they would not get emotional retribution, 29% declared no-fault divorce undermines the significance of marriage and 26% believed that complications regarding the distribution of assets and money would arise.

In conclusion, it is clear that the current divorce system is outdated as the facts for a breakdown are being manipulated to allow couples to end their marriage. This increases hostility as one party has to blame the other for the breakdown, which can have a significant impact on matters that involve children, the home and money. A second reading of the bill is due to go ahead Friday 22nd January.

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