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Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

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3 April 2012

Why divorce should be no-one's fault

Mahie Abey

A few snippets.

At the Resolution conference last week the President of the Family Division, Sir Nicholas Wall, called for ‘no fault divorce’.

He said: 

“My position is very simple. I am a strong believer in marriage. But I see no good arguments against no fault divorce. At the moment, as it seems to me we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial. ....  In the nineteenth century and for much of the twentieth, divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the ‘innocent’ party. All that, I think, has gone."

Why is no fault divorce so important? At the moment the only way to get divorced without one of you blaming the other is to wait for 2 years and get divorced with consent or to wait 5 years, at which point consent is not needed. Otherwise one of you (the Petitioner – i.e. the one who sends the Divorce Petition to the Court) needs to blame the other party, stating either that they have committed adultery or relying on their unreasonable behaviour.  As Sir Nicholas Wall says the legal need to be able to demonstrate that you are the innocent party has gone. Whether you are or not ‘at fault’ makes no difference to the resolution of finances on divorce or to issues in respect of the children. It is irrelevant. In the vast majority of marriages both parties are at fault in some way anyway, and surely the important point is simply that the marriage has broken down.

The sooner the law changes the better.

In other developments the Court of Appeal heard its first case dealing with the division of assets following the breakdown of a civil partnership. The case involved a long relationship. The Court of Appeal decided to reduce the award made to the poorer party in the initial Court hearing. However this was not really a case about civil partnerships at all, but about the complexity of dealing with assets acquired before the relationship started. I don’t think the case would have been decided any differently if it had been a straight couple, and attempts by the media to paint it differently are simply incorrect.

A development of interest last week, and in fact related to the civil partnership Court of Appeal case, is the Law Commission beginning its consultation on the law relating to pre-acquired or inherited assets, and separately on ‘need’ in financial cases. This is a much needed review on two of the most complicated and least predictable areas of matrimonial finance law. Hopefully the Law Commission will come up with some useful ideas  - that will then actually be adopted, as opposed to put out into the long grass which is what happens to so many of the progressive and important contributions made by this organisation over the years.