News and Events

A divorce with no fault?

  • Posted

There is much debate over whether the divorce system in England and Wales should be fault-based or no-fault based. In considering some of the aspects of our current law on divorce and some of the arguments in favour of a no-fault system it is reasonable to observe that developments along these lines could be implemented The Matrimonial Causes Act 1973 (MCA 1973) states that the sole ground for marital divorce or dissolution of civil partnership is irretrievable breakdown (Matrimonial Causes Act (MCA) 1973, section 1(1)); however the court will not hold a marriage or civil partnership to have broken down unless one of the facts under section 1(2) are proven. Therefore, in England and Wales we supposedly have a system requiring the petitioner to show that the relationship has irretrievably broken down, largely supported by a fault-based system. However, given the significant difficulty in defending a divorce petition, many divorces are effectively granted on the basis of unilateral demand by one party, where there is no real need to show fault. Of the divorces that take place within England and Wales unreasonable behaviour (MCA 173, s 1(2)(b)) is the most common reason given for the breakdown of the relationship. Unreasonable behaviour is a proven fact meant to be based upon the fault of the other party; however, with our divorce system moving towards divorce on demand many may now get divorced on the basis of a small number of relatively trivial matters, such as the other spouse's inability to drive. The issue is that although we allow divorce for such trivial matters we still have a requirement that one party must be blamed (or at fault) for the failure of the marriage. The current system of blame simple serves to inflame the situation and raises the concern that the responding spouse may be made to feel aggrieved at the blame being attributed to them. There are many arguments for the development of a no-fault system. If one spouse wishes to divorce there seems little point in forcing the couple to stay together in an "empty shell" of a marriage. A change in the law would allow for a much more amicable course of action between spouses, the removal of blame and the making of accusations would without doubt reduce heartache and bitterness through the process. Further, in many cases the law cannot really determine who was truly to blame for the break-up and with English law demanding that one party should have the blame placed upon them this could have damaging effects on a party especially where there are children of the marriage who might hold it against the parent deemed to be the cause of the break up of the family. There are also arguments, however, against developing a no-fault system, the strongest of which is that it undermines the concept of marriage. Having a no-fault system would permit a spouse to end a marriage whenever he or she wishes and this undermines the notions of commitment and life-long obligation behind marriage. Further, it is argued that even if the law was changed to seek to discourage parties from asking who to blame this is an unrealistic aim. There is often a psychological need for people to be able to attribute blame and want justice for another persons wrong doing, even if the act was one that most would consider harmless, as even a trivial wrong-doing may seem extreme in a situation where a marriage is failing. Ultimately it comes down to how you feel about the legal concept of marriage. Without doubt the introduction of a no-fault based divorce would undermine marriage and all that it stands for. However, it would allow couples to start new lives apart as painlessly as possible, able to look forward to the future and not dwell on what has happened in the past. Naturally if we took the latter viewpoint it would lead us to question whether, with the move towards divorce on demand and the development of registered partnerships across Europe, marriage is still a relevant legal concept, but this is something of concern for the future. Given the current development of the law of divorce it would be valid to suggest that we are actually not far away from accepting a no-fault system, even if, for the moment, we seek to avoid it. If you require any further information or wish to arrange a free initial & confidential consultation. please call us on 01245 228106 The above is not legal advice; it is intended to provide information of general interest about current legal issues.