The need for divorce reform

Resolution has long campaigned for no fault divorce. We think removing the need to apportion blame during the divorce process is an essential step towards reducing the conflict and acrimony that mars so many divorces. That’s why we welcome and support the Finding Fault project and urge policy makers, other NGOs and the public to get behind the need for reform and to take blame out of the divorce process. This simple step would to help reduce the acrimony in divorce and in particular the impact on children.

We formed our opinion through the daily conflict our members, in their capacity as family lawyers and mediators, see caused by our current fault based divorce system. Most family lawyers have long believed that divorce law reform is urgently needed due to the conflict current law brings to the process. This can be particularly damaging for parents, and can affect their ability to co-parent effectively after the divorce. There is a robust body of research on the detrimental impact of parental conflict on children.

New polling, carried out by ComRes on behalf of Resolution, has found that over 40% of young people with experience of parental separation or divorce say that they were exposed to their parents arguing or blaming the other parent for the divorce in front of them while at least eight in ten agree it is important that this doesn’t happen.

The No Fault Divorce Bill currently before Parliament is a welcome development. It would help those who mutually agree to divorce, so that they would not have to state or fabricate fault, or wait for two years before they divorce. But it wouldn’t assist where, for example, one wants the divorce, but really doesn’t want to blame the other on the papers; the option to blame and escalate conflict would still be there. 

Resolution considers reform needs to go further than the No Fault Divorce Bill and remove the option of fault from the divorce process –it simply doesn’t need to be part of that process and in reality serves no legal purpose.

We disagree that removing fault would make divorce easier.

In Scotland the divorce rate has gone down since law reform to encourage parties away from a fault based divorce and to reduce acrimony in divorce.

In our experience, the vast majority of people know little about the divorce process and carefully consider whether their marriage is over and have reflected long and hard before beginning divorce proceedings. People divorce for many different reasons, not because of the nature of the divorce process itself.

We propose that the no fault divorce process should include a waiting period of six months, which would be no shorter than the time that it currently takes to process an undefended divorce in most cases, and in many cases will actually be longer. 

There is no evidence that the current fault-based system is protecting or saving marriages. The divorce process itself won’t save salvageable marriages – that depends entirely on the will of the couple, their circumstances, their access to appropriate support and advice. We would challenge anyone to find an example of a marriage saved simply because of the need to apportion blame as part of the divorce process.

A wife or husband may understandably feel wronged and find it (or think they will find it) cathartic to blame their partner in the divorce papers. But if one or both of the couple consider that the marriage is over, doing that is not going to save the marriage, or make it any easier to settle differences about future arrangements for their children and finances. If the system encourages accusation-making in circumstances where it makes no difference to the issues that really matter, retaining it just because it might make the aggrieved person feel better doesn’t make sense and ignores the impact of conflict on family relationships and children.

There are of course many different opinions on this – divorce is a very human process and different people hold different views. We, and the research team, want to hear your thoughts – please join the debate to ensure that we have a civilised divorce process for the benefit of our children. 

3 Responses so far.

  1. Claire Smith says:
    I would like to better understand how you propose the 6 month waiting period would work? Would that be before issuing proceedings, or would it increase the current timescales for applying for Decree Absolute once Nisi has been pronounced? It seems to me the latter is preferable so that parties can still access financial relief?

    As a family lawyer currently on a career break after starting a family, I am generally in favour of no fault divorce (subject to my query above). The only thing I would say, however, is in response to your comment that a fault based system never saved a marriage. On the contrary, I once drafted a petition on behalf of a wife who felt lonely and neglected. I was careful to draft it mildly and it was sent in draft to the husband’s solicitors. The husband was mortified by the particulars and said he had had no clue how bad the wife had been feeling. They subsequently reconciled. Admittedly that was the only such time in my years of practice, but it did happen.

  2. Paul Kemp says:
    I drafted my first divorce petition on 1st January 1971, when the Divorce Reform Act came into force. The hope then was that fault was being removed from the experience of divorce. Nearly 45 years later, I no longer work as a lawyer but still hope to see no fault divorce in my lifetime
  3. […] Resolution, which is an organisation that represents family lawyers, mediators and other practitioners in England and Wales has been campaigning to change the law for some time. They have prepared a blog which can be accessed and commented upon here […]