A recent report by the Nuffield foundation reinforces the argument that UK family law is in need of a ‘no-fault’ option for divorce, and that the current imperative to assign blame only leads to animosity during court battles between separating couples.
The study, led by Professor Liz Trinder at Exeter University, looked at 500 divorce cases and discovered that many “defended cases are triggered by the law itself” which requires couples to provide grounds for divorce that assign blame to one or other party. Three of the five grounds for divorce include allegations of fault, either due to adultery, behaviour, or desertion. Disputes of this kind inevitably become centred around who is ‘to blame’ for the breakdown of a marriage rather than focusing on a settlement, creating an environment of antagonism instead of resolution.
The study stated that “the outcomes … reflect the relative bargaining capacity of the parties, not an inquiry into the truth of allegations. The court’s willingness to accept the results of some deals appeared intellectually dishonest, even if it did bring an end to a damaging dispute.”
Professor Trinder explains: “The divorce law is now nearly 50 years old and reform is long overdue. Our interviewees told us how difficult marriage breakdown is, yet the law makes the legal divorce even more difficult than it needs to be.
“Having to blame one person to get a divorce does not help and in most cases is unfair. And the court is not able to investigate why a marriage has broken down and recognises anyway that it is a fool’s errand.
“While the supreme court may find a way to grant Mrs Owens her divorce, [it] can only interpret the law. It requires parliament to change it. Reforming the divorce law to remove the requirement for ‘fault’ and replacing it with a notification system would be a clearer and more honest approach, that would also be fairer, more child-centred and cost-effective.”
Former chair of family law organization Resolution commented that the report “brings into sharp focus what most practitioners have long known – that fault-based divorce is futile, pitting couples against each other in a way which is wholly unnecessary.
“It leaves people wanting the opportunity to put their side of the story as to why a marriage has ended, but finding barriers to doing so. Where a defence is filed, the law undoubtedly causes disputes.
“It is even harder for the growing number of litigants in person in the system who, without legal advice, feel cornered when served with a petition blaming them for the marriage breakdown and conclude (wrongly) that they must defend a petition because they think that they will get a worse outcome with the children or money aspects if they don’t defend. It is time to end the blame game.”
President of the family division of the high court Sir James Munby has also backed no-fault divorce and has called for legislation to introduce it into UK family law, making it easier for couples to separate on fairer terms and bringing it closer in line with other jurisdictions in Europe and North America.
But in the meantime, there are several options for couples to minimise the animosity of separation via out-of-court alternatives such as mediation, arbitration and collaborative family law. These cooperation-based forms of dispute resolution focus on getting couples together with a mediator, arbitrator, or solicitor to work through their issues together and come to a mutually agreeable decision without the need to go to court. While grounds for divorce must still be attributed to one or other party, the process is far more collaborative and better enables clear communication and negotiation.
To speak to a family law solicitor about working towards a positive separation without playing ‘the blame game’, visit www.franceslindsay.co.uk or call 01628 634667.divorce, no fault divorce, separation