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29/10/2012 By: Nigel Shepherd
If you and your spouse have both agreed it’s best to move ahead with a divorce in a mature way, without pointing fingers, you’ll probably be surprised to find that the current law doesn’t really support a blame-free divorce. It has to be somebody’s fault … doesn’t it? In my 30 years advising on family law, many of the people who have come to see me have said that they and their partner both agree that, sadly, their marriage has come to an end but that they want to divorce as amicably as possible. Most are surprised and dismayed when I tell them that the only way they can start divorce proceedings without waiting at least two years is for one of them to blame the other for the relationship breaking down by proving adultery or unreasonable behaviour. You need a divorce before the court can make binding orders, for example to deal with your house or to share a pension, even if those orders are by agreement. Most people don’t want, or can’t afford, to put their lives on hold for two years, so they are pushed into a fault-based divorce. But the reason given for the divorce hardly ever makes any difference to how the family’s finances are divided up or what arrangements need to be made for looking after the children. We as family lawyers know this. The judges also know it. So, when it comes to an unreasonable behaviour divorce, we try to encourage people to keep the allegations as mild as possible. The judges go along with this because what really matters is sorting out the future rather than wasting time, energy and money going over old ground. That’s why I call it the blame game. In the mid 1990s, the Government made proposals to introduce a divorce system in which no fault would need to be attached to either spouse. However, this never became law and now the plan is to scrap the idea completely. But at the same time people are now rightly being encouraged to look at alternatives to fighting through the courts, such as mediation and collaborative law. We know that taking the heat out of the situation helps parents to concentrate on what’s best for their children. We know that looking forward rather than backwards increases the chances of getting agreement on the money aspects. But we have a divorce system that effectively forces most couples into doing just the opposite. It’s plain daft. With the recent Family Justice Review and other proposed changes in family law, there is an ideal opportunity to grasp the nettle and introduce no fault divorce. Where a marriage has come to an end, a civilised society deserves a civilised way of recognising this and of allowing families to move on. There’s no doubt it’s time to end the blame game. In the meantime, my advice if you find yourself in this situation is to try and agree between yourselves, and with the help of your lawyers, how to strike the balance between giving an acceptable reason for your divorce without stirring up resentment with unfair allegations.
To understand more about the divorce process, you may find it helpful to read our section on divorce procedure and watch our divorce overview and approach video.
Nigel ShepherdFamily Law Partner & Collaborative LawyerManchester