What are the implications of No Fault Divorce?

 

Historically in the UK, in order to get divorced, somebody has to take the blame – in fact there are only five recognised grounds for divorce:

  • Adultery (which must be with a member of the opposite sex)
  • Unreasonable Behaviour (e.g. violence, verbal abuse, drink and drugs)
  • Desertion (your partner has left you for at least two of the past 2.5 years)
  • Living apart for over two years (your partner must agree to the divorce)
  • Living apart for over five years (even if your partner disagrees)

This leaves married couples in the awkward position of being unable legally to amicably end their marriage, without one or the other taking the blame.

In an era where ‘conscious uncoupling’ is a household phrase, many people argue that it is time for No Fault Divorce to be an option – and it very nearly was.

The Family Law Act 1996 was introduced under John Major’s Conservative government, but in 1997 when Labour won power under Tony Blair, the elements of the Act relating to No Fault Divorce were not implemented.

As a result, the best couples can hope for is an uncontested divorce, but when one partner must admit culpability, this can leave negotiations over dividing assets, and even custody, biased in the other partner’s favour.

Parliamentary debates continue to consider implementing this two decades after it was almost enacted, and with the current trends in family law, it would seem to make sense.

More family law cases – including divorce – are being referred to mediation before they ever reach court, and mediation works best as an amicable, blame-free process where both partners can be involved on equal terms.

For couples with children this is especially important, as nobody would want to take the blame for the breakdown of their marriage, only to have their visitation rights affected as a result.

While some divorces will have a guilty party, due to excessive drink and drugs, verbal or physical abuse, or adultery, it seems only sensible to waive the two-year waiting period for an uncontested divorce on mutual terms, and allow more separating couples to benefit from fair and balanced mediation at a difficult time.

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