Our divorce law dates from 1973. It has been 43 years since there have been any substantial changes to the law. Now as then, you have to show by way of the 5 facts that your marriage has irretrievably broken down. One spouse has to allege adultery or unreasonable behaviour against the other, or otherwise both are tied into a failed marriage for 2 years. You have to wait 12 months before you can petition and then there has to be a petitioner and a respondent often seen as the goody and the baddy.
Since 1973, society’s attitude towards marriage and whether it has to be for life has changed significantly. For many, marriage is no longer a commitment for life, and the stigma of being divorced has largely disappeared. In many jurisdictions, notably the US and Australia, there is now no fault divorce and the winds of change are starting to blow in the UK – if only gently. It has been proposed that couples can send a joint petition to the court, and proceed to decree nisi stage relatively quickly. However, there would be a 12 month ‘cooling off’ period before decree absolute is pronounced.
This proposal has gained wide support from lawyers and the judiciary. The President of the Family Division, Sir James Munby has spoken strongly in favour of no-fault divorce, as have Resolution, the organisation committed to non-adversarial divorce.
The advantages of removing the blame element from divorce seem evident. Doing so will help to set a benchmark for how family law disputes should be resolved and will encourage separating spouses to agree all issues and avoid ending up in court over finance or the post-divorce arrangements for their children.
Over the past few years, the emphasis of the courts has increasingly been to use alternative methods to resolve family issues. Mediation and arbitration are encouraged. Separating spouses must consider mediation, put the needs of children first and try to decide the division of the family assets amicably. It is hard to reconcile this with a fault-based divorce system. No fault divorce would encourage couples to separate sensibly and responsibly without blame, whilst focusing on ensuring that any children are kept at the heart of all decisions that they are considered during the separation process.
With people increasingly doing their own divorces, the process needs to be as simple, straightforward and clear as possible, with forms which are not outdated and confusing. Technicalities which a lay person could not anticipate or know how to resolve have to be removed. Emphasis has to be given to the importance of agreeing a financial settlement and the arrangements for children, and the importance of converting this into a court order before completing the divorce process. Furthermore, the process itself is unnecessarily expensive. The cost of issuing a divorce petition has now gone up to £550.
The present divorce process is unnecessarily long-winded and bureaucratic. It is essentially an administrative exercise, where much of the work is carried out by administrative staff. There is still, however, the requirement for judicial involvement, which is a drain on the already-precious time of judges which could be allocated to more pressing work. It is in need of reform.