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Divorce law blog

Ending the Blame Game - No Fault Divorce Update

29/12/2015   By: Nigel Shepherd

In my blog back in 2012 I explained the surprise and frustration felt by many of my clients when I explained that in order to start divorce proceedings in England & Wales without waiting at least two years one of the couple has to use either adultery or unreasonable behaviour as the reason for the marriage breakdown. It doesn’t matter if neither of them wants to blame the other. It makes no difference if they’ve decided to deal with arrangements for the children and finances in a civilised way through mediation, collaborative law or negotiation between solicitors and that the current process undermines that. They’re stuck with this blame game if they don’t want or can’t afford to wait and so are we as family lawyers working with them to limit the fallout and helping them to get everything resolved as amicably and cost-effectively as possible.

Almost 20 years ago, and despite some strenuous and often misguided opposition, the Family Law Act 1996 was passed. It provided for no fault divorce, but was never implemented and was subsequently scrapped altogether. It was not actually the principle that scuppered it. It was how it would work in practice.

But now Parliament is looking again at the position. Conservative MP Richard Bacon’s No Fault Divorce Bill has its second reading in the Commons on 22 January. It doesn’t go as far as I (and the campaigning family law organisation Resolution) would like. It proposes simply adding a no fault option to the existing grounds and only if both spouses want that. Adultery and unreasonable behaviour would remain available, but I don’t believe that fault should be an option at all. However, it’s certainly encouraging that the debate is back on the agenda. It remains to be seen whether the Government will pick it up and take it forward, but it feels like there is a chance that we might at long last get the change we need. Change that will help couples who recognise that sadly their marriage is over, but want to focus on the future for them and their family. Change that will in particular help them focus on their ongoing responsibilities as parents to their children, which after all is what matters most to most people, rather than being forced to kick things off by unnecessary and potentially damaging mud-slinging.

I was Chairman of Resolution back in the 90s and led the organisation through all the lobbying and political manoeuvring that was required to get the legislation passed then. I will become Chairman again next April. For me ending this blame game is a professional and personal priority. I have spent my professional life helping my clients through what is inevitably a really difficult period of their lives. Divorce is rarely easy for those going through it. People will still feel hurt. They may still feel betrayed or that the breakdown of the marriage is the other’s fault. But it’s high time we moved away from a legal process that actively encourages accusations that can only add to the pain. I sincerely hope we get it soon.

Nigel Shepherd
Family Law Partner & Collaborative Lawyer

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