In April 2014 James Munby, the President of the Family Division in England and Wales, called for the introduction of ‘no fault’ divorce. At present, the only ground for divorce is that the marriage has broken down irretrievably. This ground may be based on one of five facts. Three of these facts are ‘fault-based’; namely adultery, unreasonable behaviour and the rarely-used fact of desertion. Alternatively, if the parties have been separated for 2 years and both consent to the divorce being granted, this can be used as the fact on which the divorce petition is based, as can a 5 year separation without the other spouse’s consent. At present, then, the only way a divorcing couple can avoid raising issues of fault is by a period of separation of at least 2 years preceding the issue of the divorce petition. Munby argues that the time has come to remove all concepts of fault as the basis for divorce. Resolution, the national organisation of lawyers committed to non-confrontational approach to family law matters, agrees that no fault divorce allowing couples to divorce without invoking fault-based grounds without a two-year wait. Resolution argue that the pressure and heartache of divorce are exacerbated by the fact that fault-based grounds have to be used to allow couples to divorce without a lengthy period of separation, and that the need of many divorcing couples to sort out financial issues in a speedy fashion prevents them from waiting to rely on one of the separation-based, no fault facts. Introducing a no fault ground which can be pleaded immediately would therefore allow couples to divorce with dignity and minimal animosity.
If England and Wales were to introduce a no fault basis for divorce, it would be following other jurisdictions including Australia, Canada, Sweden and all US states. Pre-empting criticism that legislating for a no fault basis for divorce would undermine the institution of marriage and the responsibilities it entails, Munby argued that he was simply ‘calling for a bit of intellectual honesty’ in that at present the broadness of the concept of unreasonable behaviour means that divorcing spouses frequently agree a petition containing ‘anaemic allegations’ which then have to be considered by a District Judge. The introduction of a no fault basis for divorce would mean that this paper exercise would no longer be necessary. Further to this, research in the US has shown that divorce rates tend to fall after a no fault basis becomes available, and domestic violence has also tended to decline as spouses become more easily able to leave abusive marriages.
In a 2012 speech the then-president of the Family Division, Sir Nicholas Wall, argued that the concept of fault in divorce is a hangover from a time when divorce impacted upon social status and it was therefore important to demonstrate who the ‘innocent party’ was. However, with 42% of marriages ending in divorce, this stigma no longer exists in most parts of society. Perhaps now, nearly 20 years after the last attempts to legislate for a no fault basis for divorce were shelved by the Blair government, the time has come for Parliament to again consider introducing a basis for divorce which recognises that there is no need for blame to be apportioned on the end of a marriage, and thus allow for a less adversarial and confrontational approach to divorce