No-fault divorce – January is often seen as a time to set resolutions and try new and different things. It can also be the perfect opportunity for a fresh start, which for some people means issuing divorce proceedings –often as a result of a number of stress-inducing factors from over the Christmas period, including an influx of alcohol, irritating in-laws or spending too much time in the company of their spouse.
Over 40,000 people are expected to search for the term “divorce” online this month, according to the latest figures with the first working Monday in January typically earning the name “Divorce Day” by solicitors because of the overwhelming increase in enquiries of this nature.
Current divorce laws in England and Wales are based on the 1973 Matrimonial Causes Act, with a married couple granted a divorce on the grounds of the irretrievable breakdown of the marriage, as evidenced by adultery, unreasonable behaviour, desertion and either two years separation with consent or five years separation without consent. As a result blame is often at the heart of the reasons why couples choose to divorce.
But what if none of the above scenarios apply? What if a couple want to divorce simply because they have fallen out of love, with neither side assigning blame? This concept forms the basis of no-fault divorce, which has been at the forefront of a number of discussions within parliament for many years and came into the spotlight again last year during a court case where a woman sought to overturn a court decision that refused her application to divorce her husband. Mrs Owens cited unreasonable behaviour for the breakdown of the marriage, including 27 allegations showing a failure on her husband’s part to provide love and affection. However the application was refused by the judge who felt the allegations were of the “minor kind of altercations to be expected within a marriage”, with the Court of Appeal unanimous in its decision despite acknowledging that the outcome would leave Mrs Owens trapped in an unhappy situation.
Rothera Sharp has carried out a survey to find out the public’s views on current divorce laws and no-fault divorce. A wide range of ages took part with just over 10% aged 18-24, 18% aged 25-32, 26% aged 33-40, 20% aged 41-50, 18% aged 51-60 and 8% aged 60 or over.
Of the respondents that are or have previously been divorced and were regarded as the party at fault, 61% did not agree with the reasons cited for the marriage breakdown and 59% of those surveyed did not think current divorce petitions (adultery, unreasonable behaviour, desertion, separation) accurately describe how a marriage can break down. This correlates with research carried out by Resolution in partnership with YouGov, which found that 27% of couples who were divorcing and had asserted blame in the divorce petition admitted that the allegation of fault was not true but was the easiest option.
56% of respondents in the Rothera Sharp study did not think the process of divorce should be based on the use of fault and 45% thought current divorce laws should be changed. When asked whether they thought no-fault divorce should be available to today’s society, an overwhelming 90% of respondents thought it should.
The same study also asked respondents what they thought the impact would be if divorce without blame was an available option, with 66% of respondents believing that it would have a positive impact on family relationships, especially those including children, compared to 24% of respondents who thought it would encourage more couples to divorce. These figures reflect data from countries that have already introduced no-fault divorce, such as the US, the Netherlands and Catholic Spain which show that divorce rates have decreased. When Scotland introduced no-fault divorce in 2006 it saw an increase in divorce rates between 2006 and 2008 before a 14% drop in 2012 over the past four years, again indicating that no-fault divorce is unlikely to increase divorce rates.
Recent figures from the Office for National Statistics (ONS) show that there was a 5.8 per cent increase in divorces between opposite sex couples in England and Wales in 2016, suggesting that current divorce laws do not act as a deterrent to couples wanting to get divorced. However the rate of divorce in 2016 was still 20% lower than the peak in divorce rates in 2003 and 2004; this could be due to the fact that attitudes to cohabitation have changed in this time, with the cohabitation rate increasing and the rate of marriage decreasing. The same study by ONS found that an estimated 42% of marriages end in divorce, with half of these divorces expected to occur in the first 10 years of marriage.
The government made an attempt to introduce no-fault divorce in 1996 but in 2001 the legislation was repealed after it proved unworkable, and in 2015 a No-Fault Divorce Bill proposing a year’s cooling off period was put forward but this failed to get a second reading. In 2017 Sir James Munby, the most senior family judge in England and Wales criticised the government for its lack of action following a number of private members’ bills on no-fault divorce being presented to parliament. Resolution, the national organisation of family lawyers, along with The Times, the Family Mediation Taskforce and some senior members of the Judiciary are all currently campaigning for the introduction of no-fault divorce; however the government has stated that no-fault divorce would be considered as part of a more general consideration of possible family law reform, and although it would study the evidence for reform it would not rush to a conclusion.
Paul Cobb, Head of Family at Rothera Sharp says: “Despite the results of our survey showing that the majority of people are in favour of no-fault divorce being an option, it is unlikely that things are going to change soon regarding no-fault divorce. However it could be that the government’s current focus is on Brexit, and once this has come into effect the government might look at overhauling a number of laws; whether current family laws will fall under this it is hard to say, but they are unlikely to be high up on the agenda.”