In July 1996 the Family Law Act got onto the statute books. At its heart was provision for no fault divorce. As with much family law reform the change was controversial, but it had broad cross-party support, as well as the support of the much of the public and vast majority of those professionals working with those families, and in particular children, who are having to cope with family break down.
The Act was meant to have been implemented in 2000. However, it never got any further. The reasons given by the then Labour Law Chancellor, Lord Irvine, were unconvincing. This was a major opportunity to improve outcomes for separating families that was sacrificed because it was realised that the not so hidden agenda of trying to save legal aid costs was unworkable and against the interests of families.
The consequence of the 1996 Act being scrapped is that we still have our current wholly unsatisfactory divorce procedure. To get a divorce by agreement you have to be separated for at least two years. If you want to start divorce proceedings earlier than that you have to base the divorce on the other person’s adultery or unreasonable behaviour. In other words, the proceedings have to be based on blame. The breakdown of a marriage is almost always difficult and distressing. The vast majority of people reach the decision to divorce only after very careful consideration and attempts to save the marriage. However, once it is clear that the marriage is over, steps need to be taken to sort out the financial consequences. The powers of the court to do this can only be accessed through the vehicle of divorce proceedings. It is mainly for this reason, rather than the wish to blame the other spouse, that almost 75% of divorce petitions in England and Wales are based on one of the two fault grounds of adultery or unreasonable behaviour.
A civilised society deserves a civilised divorce process. For the first time in over a decade, there is now the possibility of no fault divorce being revisited by parliament. At a recent fringe meeting at the Conservative Party conference in Manchester, the Shadow Minister for Justice, Henry Bellingham MP, said that no fault divorce could possibly feature in the family justice Green Paper that is expected before the end of 2009. Divorce reform is a key part of the campaigning family law organisation Resolution’s law reform agenda, “Improving Outcomes for Separating Families”. All Mills & Reeve family lawyers are members of Resolution. We comply with the Resolution code of practice, which seeks to find constructive solutions on family breakdown, keeping at the forefront at all times the impact of divorce on children.
It is time to end the blame game. We can only hope that whatever government we have after the general election we will see the end of fault-based divorce.
Nigel Shepherd