Divorce – no one’s Fault
Family law solicitor Simon Mortimer looks at the latest developments in the 'no fault divorce' bill.
So how easy could a divorce be? Anyone who has made the commitment to a marriage would no doubt agree that there should only be a divorce when there has been an irretrievable breakdown of the marriage but when everyone has heard of the “quickie divorce”, often people are surprised to hear they will still have to show that their other half has been at fault in some way before they can get a divorce.
It is relatively straightforward to get a divorce once a couple have been separated for 5 years and so long as they both agree, it can be fairly easy after 2 years’ separation. However if one or other party wants to get a divorce sooner than 2 years, they will have to show that their spouse has either committed adultery or has behaved unreasonably.
A new law to remove the fault element in a divorce did not get through Parliament in March but it has not been kicked out altogether and instead it will have another chance of becoming law in the session of Parliament which starts in mid-May 2016.
A previous attempt to remove fault from divorce failed in 1996. The new law which allowed a divorce to go through without alleging adultery or unreasonable behaviour was introduced just before the 1997 General Election, but before it could come into force it was scrapped because it was clear there were so many safeguards to prevent a divorce being obtained too easily that in practice it would be unworkable. Governments since then have avoided altering the divorce law for fear they would be accused of being “anti-family” which is never seen by politicians as being a vote winner.
However the time may be right just now for no fault divorce because Governments are now willing to make fundamental changes to reflect changes in society such as bringing in gay marriage which therefore means there is also gay divorce.
There is another reason why the Government may now want to bring in no fault divorce and that is linked with the Government announcement in February 2016 that maybe as soon as 2017 there will be “on-line divorce”. It is much more complicated and requires a Judge to manage the divorce if someone has to make a decision whether or not the fault is proven adequately. However if you take out the fault element then the whole divorce process can be dealt with by a computer and so long as the right information is put in together with the right fee paid to the Government, then the website can issue a divorce decree rather like an airline ticket.
Is this all making divorce too easy? There will be those who say that it is, perhaps for religious or ethical grounds and there is also a real worry that if a divorce is so easy then many spouses could miss out on their financial claims. In particular many husbands and probably even more wives could miss out on widows’ or widowers’ rights under their spouses’ pensions because they will no longer be eligible once they are divorced. Furthermore, if only one spouse owns the matrimonial home, then the other spouse could lose out in their rights to occupy that house once the divorce goes through and they might not realise that could mean them losing their home. It remains to be seen whether suitable safeguards are built into the system.
About the author
Simon is a partner and leads the Family Law team at Burnetts.