The new Chair of Resolution, Nigel Shepherd, has called for no-fault divorce to be introduced in his incoming speech.
He said “It is just wrong – and actually bordering on cruel – to say to couples, if you want to move on with your lives without having to wait two, or perhaps five, years one of you has to blame the other.” He points out, entirely correctly, that “couples and their children need to be protected from unnecessary conflict that can do real long-term damage to families.”
Startlingly, he claims that polling by Resolution shows that more than 25% of divorcees falsify the contents of their divorce petitions in order to get a divorce. This, he argues, shows why there is an urgent need for reform of our divorce laws.
To get a divorce in England and Wales, you have to demonstrate to the court that your marriage has irretrievably broken down. You do this by alleging one of five “facts”; adultery, unreasonable behaviour, desertion for two years, two years’ separation with the consent of your spouse, or five years’ separation without consent.
Therefore unless you are willing to wait a few years, the only way to divorce quickly is to allege unreasonable behaviour or adultery. If there’s been no adultery (or if your spouse won’t admit it) , then the only way forward is to allege that your spouse has behaved unreasonably and come up with a string of allegations of what he or she has done that is so unreasonable that you should not have to live together anymore.
Are divorces who do this falsifying the contents of their divorce petitions? Some may be. They may come up with some allegations just so that they can get a divorce. They don’t have to prove any of these allegations and their spouses don’t have to admit that they are true; common practice is simply to give a blanket denial of the allegations, but to agree to not defend. Doing this does not prejudice either spouse’s legal position in relation to financial issues or their children.
Furthermore, the allegations made may have nothing to do with the cause of the marital breakdown. They may have been a symptom of the breakdown, not the cause. The allegations may involve events that took place after the marriage failed; for example, it is not unusual to see a divorce petition based on adultery where the new relationship did not begin until after the husband and wife had separated and long since both had decided that it was over and they wanted a divorce.
There is a troubling amount of fiction going on here. We divorce solicitors are so used to regarding fault-based divorces as a means to an end, that we do not give much thought to whether we are actually helping our clients to mislead the court. I always says to my clients that they need to be able to say to the court, hand on heart, that the allegations are true, (and I have no reason to believe that they did not), but the law of probability must mean that some of them were lying just to get a divorce. I find it worrying that our standard approach for coping with outdated divorce laws is to play a part in what strictly speaking might be regarded as a conspiracy to pervert the course of justice.
We stay just on the right side of this to keep ourselves out of trouble, but it is dangerous territory.
I recall a talk about 10 years ago given by District Judges to local solicitors, designed to help us to deal the these things efficiently. One District Judge remarked how he often had to refuse to grant Decrees Nisi because the when the Petitioners (acting in person) had answered the question “Do you believe that your marriage has irretrievably broken down?” they had said “No” on the divorce petition. He noted, with a wry smile, that when the papers were resubmitted, the Petitioners had usually changed their minds and now said “Yes”. That was a decade ago and things have not changed.
The current law is ridiculously old-fashioned. The Matrimonial Causes Act 1973 was passed by Parliament when Ted Heath was Prime Minister. It has failed to change with the times. It does nothing, but add extra hostility where there is already plenty to go around. It encourages the parties to lie about their spouses. It distracts them from concentrating on resolving arrangements about their finances or their children.
No fault divorce would not make divorce easier. I do not believe that we would see a single extra divorce if it became law. People do not get divorced because it is easy to get divorced, they do it because their marriages have collapsed and cannot be saved. It’s already very easy to divorce, you just have to be unpleasant to each other. It would not create more work for divorce lawyers. To be frank, I think that no-fault divorce may actually lead to me having less work as more people will decide that they can do it themselves without a divorce lawyer; I will probably end up concentrating of their financial and children issues, rather than doing the divorce itself. Divorce ought to become an administrative process handled by a Registrar of Births, Deaths, Marriage and Divorces as suggested in 2014 by Sir James Munby, President of the Family Division, rather than a court–based process.
No fault divorce would allow people to divorce with dignity. Richard Bacon MP is currently trying to introduce a private member’s bill in Parliament that would introduce no-fault divorce. So far its second reading has been repeatedly delayed and it has very little chance of becoming law.
I read a blog recently by someone who divorced in New York (where I believe that they have no-fault divorce). She described how, even then, her husband still insisted that he be the Petitioner and she be the Respondent, something that she described as being like “mild S&M role play”. He still wanted to be able to say that he divorced her, not the other way around. He thought this was important, but frankly it was not.
It’s high time this nonsense ended.
23rd April 2016