Are ‘no fault’ divorces the way forward?

For many years, there has been a common misconception that married couples can divorce on the grounds of “irreconcilable differences”. In this country, unless a couple has been separated for at least two years, one party must be held responsible for the breakdown of the marriage, either by committing adultery or by behaving in an unreasonable way. If unreasonable behaviour is alleged, then the person seeking the divorce must set out some examples of such behaviour in the divorce petition.

In his recent speech, Sir James Munby (President of the Family Division of the High Court) said that he would be in favour of the introduction of a “no fault” divorce, meaning that it would no longer be necessary for one spouse to blame the other for the breakdown of their marriage.

In his view, removing the concept of blame from divorce would introduce “intellectual honesty” to the system, and reflect the reality of what happens in practice. He commented that the change would “in practical terms make very little difference” due to the fact that many couples agree to the grounds of the other’s unreasonable behaviour before the divorce petition is sent to the Court.

There are many cases in which couples come to a joint decision that, sadly, their marriage isn’t working, and neither party is to blame for this. Unless they are prepared to wait until they have been separated for two years, they find themselves in the unfortunate position where one party is forced to hold the other responsible for the breakdown of the relationship. This can introduce hostility into what would otherwise be an amicable separation, and can be particularly damaging when there are children involved.

There is concern in some circles that this change could make it too quick and easy for couples to divorce, without taking the time to properly consider and reflect upon the reasons for the breakdown of their marriage. Critics have argued that couples may view marriage more lightly, and may see divorce as an easy option.

Getting divorced is a stressful and painful time for people, which is often only exacerbated when a spouse discovers that they are to be held responsible for the ending of their relationship. Removing the element of blame would be a welcome change for clients and family practitioners alike.

Sir James Munby’s comments have certainly created a stir amongst the legal community, and although the government has no plans at the moment to introduce a no fault divorce, the matter is now firmly open for debate.