The Blog

Divorce, It's Time To End The Blame Game

Most people do not enter divorce lightly. Many couples fight hard for years to try and rescue relationships. There are men and women made miserable in marriages through no fault of either party. Their only recourse is to either enter a process that says someone must be at fault or endure a long, uncertain wait.

Yesterday saw the release of England and Wales' yearly divorce statistics, showing that divorces of opposite-sex couples increased for the first time since 2009. A rise of 5.8%.

A knee-jerk reaction might be hand-wringing about the state of marriage. Notwithstanding that many happy couples are choosing to cohabit rather than marry and so won't be reflected in these stats, many professionals helping unhappily married couples navigate family breakdown are calling for a fundamental relaxing of divorce rules.

Despite the fact that divorce is no longer a social taboo, the legal process in England and Wales is not just outdated, it is damaging. If parties wish to divorce after the minimum of 12 months the only mechanism is a fault-based divorce, unless they wait it out for two years.

Resolution's campaign to end the blame game has bought the issue to parliament, with a briefing paper published this week making the government's position clear that any change "would not make sense to take forward... in isolation without consideration of its fit within the family justice system."

As a family lawyer heading a team of over 30 colleagues we know there has to be a better alternative, it's time for a change.

Not all divorces are based on wrongdoing

In England and Wales, the person filing for divorce must prove to the court that the marriage has irretrievably broken down by demonstrating one of these five legal facts.

1. Adultery

2. Unreasonable behaviour

3. Desertion

4. Two years separation with the ex-spouse's consent to divorce

5. Five years separation (no consent of the ex-spouse required)

1 and 2 are clearly fault based. The others require time. Some spouses suffer awful treatment at the hands of their partners and lawyers are there to offer advice that helps to protect them. However, there are also many couples who simply decide together that they will be happier apart. A two year wait can be a long time for couples wishing to move on with their lives

To divorce sooner, the court needs to see evidence of cheating, or unreasonable behaviour which potentially places couples in the role of victim and perpetrator. In many marriages, the situation is not polarised in this way. In order to reflect real life, the law needs to remove blame. This will help diffuse tension and assist couples to move forward, which is all the more important where they have children

In Scotland no-fault divorce was introduced in 2006. For two years the divorce rate rose, but then it continued to fall.

The argument that no-fault divorces will open the floodgates and encourage families to break apart is not substantiated by the evidence. In 1996 moves were made to introduce no-fault divorce, but were quickly repealed in 2001 after certain elements were deemed 'unworkable'.

There is still appetite for change. Lawyers, the President of the Family Division of the High Court of England and Wales, James Munby, and even relationship counselling charity Relate all back calls for no-fault divorces.

Let adults make adult decisions

Most people do not enter divorce lightly. Many couples fight hard for years to try and rescue relationships. There are men and women made miserable in marriages through no fault of either party. Their only recourse is to either enter a process that says someone must be at fault or endure a long, uncertain wait.

This is a tough message for lawyers to deliver. Solicitors are there to ensure that clients are guided through the legal process with the best advice for their individual circumstances - not to pit husband and wife against each other. A good lawyer will ensure they do all they can to help the parties remain civil. I try and draft divorce petitions in as neutral tones as possible but bizarrely must still demonstrate unreasonable behaviour.

This is wrong. There's got to be a better way.

It's time for the law to keep paced with modern life, and allow adults to make decisions in an adult way.