On Friday 11 March 2016, the House of Commons will hear the second reading of the ‘No Fault Divorce Bill’. Introduced in October 2015 by Richard Bacon MP, the Bill proposes to introduce a sixth ‘no fault’ fact for divorce that will give couples the opportunity to present a joint petition (or joint application in the case of a civil partnership). Mr Bacon set out at the first reading that it was not his intention to make divorce “easier” but to create the opportunity for a couple to achieve a divorce without having to “throw mud at each other”.

“Irreconcilable differences” is a ground for divorce which couples can mutually agree should be cited in a divorce petition in several states in the USA and is – according to various magazines - the reason relied upon by Cheryl Fernandez-Versini to obtain a divorce from her husband. It is also what allowed Gwyneth Paltrow and Chris Martin to “consciously uncouple”. This option is not available to couples in England and Wales, but that may be about to change. 

THE FAULT-BASED SYSTEM IN ENGLAND AND WALES

Currently in England and Wales, the only ground for divorce is the “irretrievable breakdown” of a marriage which must be evidenced by one of five facts:

  • Adultery by one party which means the other party finds it intolerable to live with them
  • Behaviour which means the petitioner cannot reasonably be expected to live with the other party
  • Desertion by one spouse for a period of two years
  • Separation for two years and the parties agree to divorce or
  • Separation for five years. 

Unless couples have been separated for a period of two years or more, they cannot apply for divorce by consent and one party must rely on either adultery, the other spouse’s ‘unreasonable behaviour’, or desertion. There is no joint application for divorce. 

The English system is often described as a fault-based system as one party must essentially ‘blame’ the other before the irretrievable breakdown of a marriage can be proved. This can sometimes increase animosity and start things “off on the wrong foot” when one spouse sets out the details of the other spouse’s ‘unreasonable’ behaviour in writing. This can be the case even when the lawyers involved prepare deliberately mild allegations of behaviour. 

This is out of step with other jurisdictions around the world, some of which have adopted a policy of no-fault divorce since as early as 1960. Even in the unforgiving state of Texas, where you can divorce your spouse on the ground of a felony conviction (whatever happened to standing by “for better or worse”?), there is no concept of matrimonial fault. ‘No fault’ divorce has also been adopted in Australia, Switzerland and Canada, to name but a few, so why is England still so far behind? 

OPPOSITION TO NEW PROPOSALS

Those opposed to Mr Bacon’s proposals argue that the introduction of no fault divorce makes the divorce process easier and more likely to undermine the importance of marriage. At the first reading, Sir Edward Leigh referred to the evidence from Canada. In 1968 Canada’s divorce rate was 50 per 100,000 people. Two years later, following the introduction of no fault divorce, the rate had increased six-fold. 

Sir Edward argued forcefully that allowing couples to divorce easily will devalue the magnitude of the decision that they are making. He referred to hard-hitting statistics showing that an increase in single parent families is likely to result in an increased number of disadvantaged children. He also cited several well-rehearsed negative social, educational and medical arguments in support of the proposition that making divorce possible without alleging fault would make the negative outcomes more likely. 

Penningtons Manches family partner, James Stewart, observes that: “England’s punitive fault-based system is both out of step with other progressive family law regimes such as Canada and is artificial bearing in mind that petitioners are most commonly encouraged to rely on mundane and inoffensive allegations of behaviour to secure the decree of divorce. My hope is that common sense will prevail and that our fault based regime will be consigned to the dustbin of history.”