Monday, July 22, 2024

The History of No Fault Divorce and Why Things Are Changing

Collaborative post

It’s likely no fault divorce will replace the existing system in the UK, so forget everything you know about divorce and read on to see what the new system has in store.

Hand removing ring - no fault divorce

Divorce has always been a tricky time for a married couple. You’ve already been through whatever ordeal caused the breakup in the first place, and now you have to go through the process of splitting your assets and deciding what to do with any children or pets you have.

The current system also requires you to find fault with your partner in order to get a divorce. In many case, this puts even more tension on the breakup. To reduce the added stress of blaming your partner for the divorce, the UK government is looking to pass a no fault divorce bill that will change the way divorces are decided on, forever.

In this post we’re going to cover what the current system looks like, and how no fault divorce will change that system. We’ll also delve into the potential advantages and disadvantages, and whether it’s worth postponing your divorce until these new laws come in. So, for all this, you came to the right place…

What is the Current Divorce System?

The current divorce system in England and Wales requires one spouse to file for divorce, and in the process accuse their partner of misconduct. There are three reasons you can choose for this, including:

• Adultery
• Unreasonable behaviour
• Desertion

Once a spouse has filed for a divorce, the other person needs to respond. This makes the whole process of filing for divorce a fault-based system, requiring evidence of guilt from one party.

If the person who didn’t file for divorce disagrees, then the person who began the proceedings will need to provide more evidence to prove the reason they gave for the divorce. If they can’t provide enough evidence, the court can rule for the couple to live apart for 2 or 5 years until they are able to get divorced.

Because of all this, the whole process of divorce can take a considerable length of time due to both the fault-based system, and the division of assets and children.

How Did No Fault Divorce Enter the Scene?

The move to change divorce laws was somewhat prompted by the case of Tini Owens, a Worcestershire woman who filed for divorce from her husband of 40 years. Her husband contested the split, and the law stated she could only get a divorce by living apart from him for five years. Tini had explained how unhappy she was in the marriage, but her husband disagreed and said they still had a good few years in them.

Her case was rejected by Supreme Court justices in 2018, and one of the justices said they rejected her claim, but only because their hands were tied until parliament changed the law.

This case, and others like it, built up to the point where the government decided to put forward a no fault divorce bill. It has already passed its first hurdle in parliament, with 231 votes for to 16 against, and it’s expected to come into play by Autumn 2021.

How Will No Fault Divorce Change the Current System?

The new no fault divorce law means that, instead of having to blame the other person for the breakdown of the marriage, a couple can simply claim ‘irretrievable breakdown’ as the cause. So, if a couple have naturally grown apart, which can happen with some marriages the longer they go on, then they will be able to split amicably without having to dredge up any past misconduct.

Also, no fault divorce can be mutual as it doesn’t require only one spouse to file it. This makes it a much less contentious way to obtain a divorce. No fault divorce is basically the same as waiting out the two-year separation period in current divorce law but without the time-limit.

What are the No Fault Divorce Pros and Cons?

There are various no fault divorce pros and cons that have been debated on both sides of the aisle. Understanding these gives us a wider picture of the benefits of ending marriages amicably, but also how they could dissuade couples from trying to make their marriage work. Here is our list of the pros and cons of no fault divorce:

Pros of No Fault Divorce

Reduces Stress and Pain

Baroness Hale has been an advocate for no fault divorce for a long time. She says that being able to say that the relationship has failed without blaming the other person eases the stress and pain of the whole procedure. There’s no point in making an ugly situation uglier by dredging up each person’s personal failings in the marriage.

Eliminates Lengthy Court Battles

Hale also believes that no fault divorce would make it easier for couples to settle the terms of their divorce by eliminating the whole blame part of the procedure. Only financial issues would have to be debated in court, or out of court settlements, reducing the time it takes to finalise the divorce.

Less Upsetting for the Children

Many divorces involve children, and dragging them through a ‘blame game’ can have adverse effects on how well they deal with their parents splitting up. Lawyer, Charlotte Newman, says that, “promoting a system which encourages a conciliatory approach will also benefit children, who, if exposed to animosity between separating parents, can suffer emotional harm.”

Avoids the Domestic Abuse Trap

There are many cases of the old divorce system trapping domestic abuse victims with their abusers. After all, without proof, they could be stuck with them for two or five years.

In response to cases like this, the government said that introducing no fault divorce will “stop one partner contesting a divorce if the other wants one – which, in some cases, has allowed domestic abusers to exercise further coercive control over their victim.”

Cons of No Fault Divorce

Couples Divorcing Instead of ‘Working it Out’

Some people believe that making the divorce process easier could allow couples to divorce without trying to make their marriage work. In a letter written to the Telegraph, several MPs, including Sir Desmond Swayne, Sir John Hayes and Fiona Bruce, asked the government to put more attention into helping couples reconcile and work out their issues instead of “undermining the commitment of marriage”. They also said the no fault divorce bill was badly timed, as COVID-19 has made a lot of durable marriages more fragile.

At-Fault Partners Are Not Held to Account

There are some situations where a spouse needs to be held to account for their mistakes. If a spouse does act unreasonably, or commits adultery, they shouldn’t be given the option of getting out of the divorce without it being taken into consideration.

Encourages Shotgun Weddings

Some have argued that introducing a no fault divorce option could encourage people to get married without thinking of the implications of the breakdown. In place of a no fault divorce option, it has been suggested that education on the implications of a breakdown, including the financial risks, should be used instead. This education might encourage people to think before they get married, reducing the need for introducing an easier way to get divorced.

Is it Worth Waiting for No Fault Divorce to Come in?

At this stage it appears that the no fault divorce bill will be passed. The Conservative Government has a large majority, the Bill has support across both parties and, although there is some opposition to the bill, it’s fairly minimal. So, is it worth waiting to see if no fault divorce is passed in the UK in 2020?

Probably not. Despite everything being in the Bill’s favour, there is no certainty that it will pass and, even if it does, there is no indication as to when that will be or when it’s provisions will come into effect.

A no fault divorce bill is just the first step. Once ratified, the actual rules will have to be implemented and the procedures sorted out. Overhauling a divorce system that has been in place for decades isn’t an easy task.

However, if you and your partner are in no rush to get divorced, or you believe that your partner might contest your reason for getting divorced, then you might be better off waiting. Some estimates say it may be passed as early as the end of this year or early next year, but we’ll have to wait and see.

The Future of Divorce

Divorce is a tricky thing. All relationships, and their breakdowns, are different, and there is no ‘one-size fits all’ solution.

It seems likely that the government will untangle some of the issues around ‘blame game’ divorces by introducing a no fault divorce bill. Whether this approach will encourage more people to enter into marriage without thinking, or divorce without trying to make their marriage work is uncertain.

All we know for sure is that, if this bill passes, it will allow people to free themselves from marriages that they were previously unable to escape. It will also encourage amicability, and remove the compulsory accusation element of divorce that can cause stress for all involved.

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