No fault? Not always

Do this week’s widely-approved changes to divorce law risk a potential disservice to one very important section of people?

The Government has announced legislation to overhaul divorce law with the intention of reducing conflict between parties.

The move to ‘no fault’ divorce follows a public consultation in which more than 3,000 interested parties took part.

Proposals would end the need for spouses to evidence at least one of adultery, behaviour, desertion, two years’ separation (if the other spouse consents to divorce), or five years’ separation (if the other spouse disagrees). Instead, one or both parties would provide a statement of irretrievable breakdown.

While the proposals that will update 50-year-old laws have been generally welcomed, they may remove an important part of the healing process for spouses who’ve suffered through their marriages.

Family view

Merrick Life has spoken with two families who’ve recently experienced the divorce process. We heard from them that attributing blame for the marriage breakdown was actually a powerful positive.

‘Malcolm’, who has been supporting a family member through their divorce, said: “There will be many divorces where there is no blame. But when there is behaviour that has led directly to the breakdown of the marriage, then it just feels like an opportunity to voice that is being squashed.

“In so many areas of life we are being told we have to address feelings. It is part of the process of healing to get things out that have happened. The concept of ‘no fault’  flies in the face of that.

“For my family member it’s part of their recovery. It’s making them  feel better. It has made them  sit down and think about everything that’s happened  and  realise it’s not their fault.

“The end result would be the same under a changed law but the journey may be harder. There doesn’t appear to be the opportunity to get all that stuff out and deal with it.”

Client view

A female client also told us: “I think there’s a danger that by trying to make everyone fit under this umbrella you’re saying that what some people have been through is irrelevant, and it can’t be irrelevant.

“If there has been abuse in the relationship then I think the courts should listen sympathetically to that.

“I’m sure ‘no fault’ will be fine for many couples but for me it would have been a disaster. I had to summon every ounce of courage and energy to seek a divorce. The abuse I suffered was not just verbal and physical but also financial.”

“If everything is ‘no fault’ for those like me it is not true, it’s not realistic.”

Government view

The Government admitted that for some being able to blame their partner for the breakdown was a cathartic experience.

The report says: ‘Some thought that ending the availability of conduct-based facts would remove the right of “innocent” parties to name the “guilty” party.

‘The role of the court, however, is not to adjudicate on who was at fault for the breakdown of the marriage, only to satisfy itself that the legal threshold of irretrievable breakdown is established.

It later adds: ‘We appreciate that some respondents believed that parties who were “wronged”, as they saw it, should have an opportunity to set this out by using a conduct-based fact. But we also heard arguments from groups representing victims of domestic abuse that – on balance, given the limited legal effect of this and its risk of heightening conflict – this is unnecessary as part of the process of obtaining a divorce.’

Merrick view

Merrick principal Amanda Merrick welcomed several aspects of the proposed changes, including reducing time limits for a separation with or without the other party’s consent.

But she added: “There are, of course, couples for whom no-fault would be the preferred route. For some people though, such as those who have been in an abusive relationship, assigning fault or blame to the other party is empowering; very often the start of their healing process.

“Divorce reform should therefore be about creating options. It shouldn’t be about making it the same for everyone no matter what experiences have brought them to this point.

“Few, if any, undertake divorce lightly and for those who have suffered the petition is often the first step towards re-finding their voice and being heard; it is the start of a journey to move away from the past towards a better future  .”

Justice Secretary David Gauke said new legislation will be introduced to Parliament ‘as soon as parliamentary time allows’.

There’s a summary of what’s proposed here and you can read the Government’s response to the consultation here.

 

 

 

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I WILL BE ETERNALLY GRATEFUL. AMANDA MAKES YOU FEEL LIKE YOU ARE HER ONLY CLIENT AND HOLDS YOUR HAND TO GUIDE YOU THROUGH