The law in England and Wales as it stands at the moment makes it impossible to divorce without blame (see our separate blog on the grounds for divorce) unless you either wait until you have been separated for at least 2 years and both spouses consent to the divorce, or you wait at least 5 years. As divorce solicitors we feel this simply isn’t right.
When a marriage comes to an end it can be very emotional and conflict can arise. There are a lot of things for spouses to sort out, including how to manage the finances and how to make sure that the impact on any children is minimised as far as possible, without the need to be burdened with assigning blame for the breakdown of the marriage.
In some cases where people have mutually agreed that their marriage is over, the law as it stands makes what should be an amicable situation confrontational as the spouses are forced into blaming each other if they want to finalise matters between them without having to wait 2 years. Many couples do not want to put their lives on hold for 2 years, due to this being emotionally difficult and there can also be significant financial and tax consequences that can arise if the divorce is not dealt with straightaway.
Legally speaking, there is simply no way for a married couple to divorce without one spouse having to assign blame, unless they want to wait until they have been separated for at least 2 years. We and many members of Resolution (the national governing body for family law practitioners) argue in support of the powerful #NoFaultDivorce campaign, that current divorce law makes the already distressing process of divorce even harder. Furthermore, this element of blame is unnecessary as the reason for the divorce makes no difference to any financial settlement or children arrangement.
A survey undertaken by Resolution showed that 90% of family law professionals agree the current law makes it harder for them to reduce conflict and confrontation between clients and their ex-partners.
In the case of Owens v Owens the wife has been denied a divorce on the grounds that her husband’s behaviour was not deemed ‘unreasonable’ enough for the purposes of the divorce petition. Resolution has been granted exclusive permission to intervene in the case on behalf of the wife arguing that the current law can be applied in a way that allows her the divorce she is seeking. However, irrespective of the outcome in the Supreme Court the law needs to be changed to avoid such cases coming before the courts in the future.
The current divorce process seems archaic and not fit for purposes in today’s modern society. The blame games need to come to an end so separating spouses can move forward with their lives in the best way possible.
Resolution are proposing a divorce procedure where one or both spouses can give notice that the marriage has broken down irretrievably. The divorce can then proceed after six months if one or both parties want to go ahead.
Being able to divorce without blame, decreasing conflict and tension, will increase the chances of spouses being able to use non-court dispute resolution processes such as mediation and the collaborative model. Such approaches not only reduce the burden on the court system but will ultimately save separating spouses time, costs and stress.
Divorcing without blame is not a new or novel idea, many countries around the world (including Australia, the USA and Spain) allow for divorce without blame.
If you, like us at Family Law Partners , feel removing blame from the divorce process will go a long way in reducing conflict between separating spouses and minimise the impact on any children you can find out more about how you can support and get involved in campaigning for change online at: http://www.resolution.org.uk/editorial.asp?page_id=1318