When will a no-fault divorce be possible?

A few days, a referendum in Malta resulted in a 52.67% majority voting in favour of introducing divorce laws for the first time. Until now, Malta was one of only three countries in the world that still did not allow divorce (and one of them is the Vatican). Leaving aside the Holy See, the Philippines is the only country left where it is not possible to get divorced, although moves are now afoot there to change that too.

The  Maltese government has accepted the outcome of the referendum and has said that it will introduce very conservative divorce laws. I hope that does not mean that they will adopt a fault-based divorce system, such as the one that currently exists (and has existed since the late 60’s) in England & Wales.

To get a divorce here, you need to show that your marriage has irretrievably broken down.  You do this by demonstrating to the court that there has been adultery, unreasonable behaviour, desertion, two years’ separation (with your spouse’s consent to a divorce) or five years’ separation. The 2 different types of separation divorces could be seen as a form of no-fault divorce, but they involve a lengthy wait. If you want a divorce in the immediate future, you have to point a figure at your spouse and say that they have either committed adultery or behaved unreasonably.

Forcing people to allege nasty things about their spouses hardly helps them to resolve financial disputes or arrangements for their children. It runs up unnecessary legal bills as the parties jockey for position and argue about who should divorce who, on what grounds and who should pay the costs. And all of that unpleasantness makes not the slightest bit of difference when it comes to sorting out who gets what or where the kids live.

One government after another has failed to reform the divorce laws (To be fair the Major government tried to introduce no fault divorce in the 90’s, but the Family Law Act 1996 was such a dog’s breakfast that the Blair government shelved it indefinitely). Many politicians believe that divorce reform undermines marriage, when in fact a fault-based system promotes discord and damages the parties’ ability to work together in the best interests of themselves and their children.

Contrary to public perception, solicitors try to keep the unpleasantness to a minimum. Most solicitors are members of Resolution and abide by its Code of Practice which encourages the constructive approach to family law. We try to smooth the path by keeping allegations of unreasonable behaviour to the minimum necessary to obtain a divorce and we show the draft divorce papers to the other side to allow them to suggest changes that are less objectionable to them. The respondents can also simply deny behaving unreasonably, but agree not to defend. However, as the years go by, I have come to the regard this whole process as something of a farce.

More and more countries are adopting modern no-fault divorce systems. It’s high tiem that we did too.

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