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The Time Has Arrived for No-Fault Divorce

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Divorce hit the headlines again this week, with leading judges in the English family Court calling for 'no-fault' divorce. This follows an acrimonious case in the Court of Appeal between Susan and Alan Rae, in which Mrs Rae sought to prevent her husband from divorcing her due to her "unreasonable behaviour." Mr Rae complained that the wife threw his packed lunches away and removing a fuse from a washing machine, which she put down to petty squabbles.

Lord Justice Thorpe, rejecting her appeal and allowing her husband to finalise the divorce, said he was sympathetic towards her situation but that it was clear that the relationship was at an end. He commented that our current divorce laws were out-of-date and that no-fault divorce should be introduced so that contests such as these could be avoided and divorce granted without having to attribute blame to either party to the marriage.

On the same topic were comments this weekend by Sir Nicholas Wall, the senior family court judge in England, that while he was a strong believer in marriage, divorce nowadays was largely an administrative process, and so he saw no good arguments against no-fault divorce.

Predictably, this has led to criticism from some, who say that divorce should not be made any easier. Attempts were previously made, amid similar criticism, to introduce it following the Family Law Act 1996 introduced by the last Tory government, but the plans were shelved shortly afterwards.

Currently, if a couple do not want to wait at least two years before they can divorce, one will need to blame the other, and show that the marriage has irretrievably broken down by alleging that they have either committed adultery or behaved unreasonable. In 2010, almost half of all divorces were based on unreasonable behavior.

While often these can be relatively minor examples, many find it difficult to be blamed for the breakdown of the marriage, particularly where they feel that the other contributed as much, if not more, to the separation. This can lead to particular acrimony and bad feeling between the couple, making it more difficult to agree plans for their children and financial arrangements.

One argument is that it is important that the court takes into account who is to blame for the end of the marriage, and that if it was not, a greater injustice would be felt by the couple. However, the last few decades have seen a shift away from taking into account why the relationship broke down when considering what should happen to the children and how the finances are to be divided.

Only where one person's actions are so serious (if there has been violence, for instance) would bad behaviour have an impact on any the outcome. It seems increasingly outdated, then, to insist that one person must be blamed for the end of the relationship upon divorce where this does not have any wider legal impact.

Instead, insisting that blame must be attributed in order to start a divorce immediately can be counter-productive, creating or increasing any bad feeling between the couple, and making it harder to reach a sensible and quick resolution to the arrangements that need to be made. At a time when the Government is trying to keep couples from taking their disputes to an increasingly over-burdened court system, it would make more sense to minimise the acrimony between them.

It is also difficult to see that introducing no-fault divorce would lead to an increase in the divorce rate. In 2010 alone, over 119,000 couples were divorced, and the overall divorce rate has increased significantly over the past 40 years. It does not appear that couples are being put off from separation or divorce by the need to blame the other in order to start divorce proceedings straight away. Few couples take the decision to separate lightly and where they do, it must be better for families that any potential conflict is kept to a minimum, and any steps to assist this should be welcomed. The time for no-fault divorce has surely arrived.

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