The Current Position

Under current divorce law in England, unhappy couples are not automatically entitled to a divorce. It is necessary for one party to petition the court demonstrating that the marriage has broken down irretrievably, as evidenced by one of the relevant five facts:

1. Adultery
2. Behaviour which makes it unreasonable to expect the petitioner to continue living with the respondent
3. Desertion
4. Two years separation with the consent of the other party
5. Five years separation without consent

The respondent (the person who does not initiate the divorce) is able to challenge the assertion that the marriage has broken down. If they do so, the court must look into the facts set out in the petition. If the facts cannot be proven, and the judge is not satisfied, the divorce can be refused. This, in effect, compels the parties to remain married until five years of separation has passed.

When attempting to divorce, a petitioner must therefore blame the respondent for the breakdown in the marriage, even if the decision to end things is amicable. This forces a petitioner to cite ‘faults’ in their partner’s behaviour and prove them to the court, leading to antagonism, increased costs and dishonesty among litigants.

WE BELIEVE IN CHANGE

In England and Wales the law currently requires divorcing couples to allocate fault to prove that their marriage has irretrievably broken down. There are no means for both parties to accept irretrievable breakdown, even if this is what both accept has happened.

The process of finding fault is farcical and antiquated

• Finding fault has its roots in historic legal practice which is paternalistic and chauvinistic. These days, divorce is far less stigmatised and very rarely contested.
• 50% of divorces involve a fault-based justification, and more than half admit that the allegation of fault wasn’t true.
• Britain is out of step with the many countries in the Western world who already offer no-fault divorce, including the USA and Scotland.

– Finding fault sets a conflictual path for the divorce process from the outset.

• Finding fault fuels animosity, and increases the likelihood of emotional distress.
• Finding fault does little to establish the cooperation needed for successful co-parenting post-divorce, with potentially negative consequences for children.
• Finding fault drags out the process of divorce, clogs up our overstretched courts and adds to the expense for couples.

– Finding fault doesn’t help save marriages.

• By the time divorce papers are filed it is often too late to intervene and save a marriage.
• Virtually no divorces are contested in the courts. The legal process should reflect this.
• Counselling would be more appropriately made available before marriage, or at an early stage of marital difficulty.

Supporting Marriages

Recent statistics suggest that 42% of marriages in England and Wales end in divorce, with nearly 50% of divorces occurring within the first 10 years of marriage. This would not increase with no-fault divorce. To truly protect marriage, the government should consider introducing initiatives that would strengthen marriage from the outset, not when it is already too late.

One such initiative could be making pre-marital counselling more accessible. Many faiths require couples to go through this, but it is rare in secular marriages. This could help a couple consider and prepare for issues that might affect their marriage, covering topics such as money, children and communication, some of the most common reasons for divorce, before they enter into such an important commitment. Significantly, a 2003 study found that couples who underwent counselling before their wedding had a marital success rate which was 30% higher than those who did not.