There has been considerable discussion in the press recently about whether couples are being 'allowed' to divorce for reasons which are too trivial. Many commentators believe that it is already 'too easy' to get divorced and warn that a system of no-fault divorce would encourage relationship breakdown. What is the reality behind these stories?
Julia Thackray, head of Penningtons’ family law team, explores four myths surrounding no-fault divorce and why reform of divorce law is long overdue.
Myth 1: We already have no-fault divorce in this country
The law at present only allows couples to divorce without ‘fault’ if the marriage has broken down and they have been separated for two years (as long as both of them consent to the divorce) or five years (if one of them does not consent). At any earlier time a divorce can only be obtained if one person cites the other’s adultery, unreasonable behaviour or desertion; all fault-based divorces.
Myth 2: There is no problem with having to wait to get a divorce; it’s a good safeguard
Separation and divorce is usually a lengthy process involving many stages, including the relationship breaking down over a period of time, discussions moving towards the end, decision making and finally a formal, legal process. Alongside that couples are trying to agree on financial settlement and issues over the care of any children. By the time a couple come to divorce, they have usually been in this painful process of untangling their lives from each other’s for some time. If an obligatory two or five year delay is built into the process, it can create an intolerably long limbo for some couples. This waiting period can, in any event, only start once the couple have already reached the point of separation.
Financial settlements are usually timed to coordinate with the final decree in the divorce; an agreement can be reached earlier, but it will not be made into a final, definitive court order until the divorce is finalised. If a couple are unable to agree on finances, then they cannot obtain court orders until they issue divorce proceedings; this means that for a financially dependent spouse, he or she must issue a divorce to get maintenance and funds for housing. Delays between separation and divorce can lead to difficulties where the couple’s financial position changes significantly as arguments often arise about what is fair when it comes to the treatment of post separation assets. It suits some couples to wait to divorce; others want to deal with the divorce and try to reach solutions on finances and children without a long delay, so that they can start to move on.
Myth 3: Couples are able to divorce for trivial reasons
Recent press reports have criticised the incidents of unreasonable behaviour in some divorce petitions. Some individual 'reasons' may seem trivial, but the reality here is not what it seems.
There is guidance on the way that divorce proceedings should be approached to try to reduce conflict in an already difficult situation. The Law Society’s Family Law Protocol advises on unreasonable behaviour divorces: ‘petitioners should be encouraged only to include brief particulars sufficient to satisfy the court’. And this is what (usually) happens; the minimum information necessary is included. That may give the impression to some that the reasons are trivial, but if a petition is received which lists pages of unreasonable behaviour, the effect is pretty much guaranteed to increase conflict and distress, making financial settlements and children issues much harder to resolve. In any event, it is often the case that the real reasons for a relationship breakdown are hard to pinpoint and, more often than may be expected in some quarters, couples are very aware of not including information in the petition that would cause offence or upset.
Myth 4: The process should not be too easy; it would make people think twice about getting divorced
Divorcing couples have a lot to consider; practical, emotional and legal issues. Sometimes people seek advice when they fear that the relationship is in trouble, but hope to stay together. They often want to know ‘what would happen’, whether that is how finances could be sorted out or how the courts would deal with children issues. They may want to know about how divorce works, but the requirements of the divorce process rarely, if ever, play a part in the decision that people make. They will need to make decisions about the basis for the divorce, they may have discussions with their spouse about which route to go down. They may not like the choice between waiting for two years or citing unreasonable behaviour, but it does not stop them from divorcing. They choose a solution and work within the system as it currently stands.
What benefits would no-fault divorce bring?
Anything which helps separating couples to get through the process with the minimum of difficulty and conflict should be welcomed. Most couples do not divorce easily; many are in unhappy relationships for years before leaving and some are in dangerous and damaging relationships which blight their lives. There are ways in which couples may be supported through difficult times; counselling services and other direct help as well as indirect support such as improved and affordable childcare to reduce the strains on families with young children. Putting procedural hurdles in the way of divorce, however, does little to keep couples together and only serves to make a painful process more difficult. Many couples are increasingly interested in the use of mediation and collaborative law as ways of separating with dignity and to support those positive developments, no-fault divorce cannot come too soon.