The media are currently full of reports that the Government is expected to change the law relating to divorce. This reference to a change in the divorce law is as a consequence of a leaked document and makes reference to a consultation process. There is reason to believe that the tide has finally turned and the divorce process will no longer be based on blame. The Justice Secretary had previously stated that the argument for reform was 'strong' and that he was ‘increasingly persuaded… that what we have at the moment creates more antagonism than we really need’. Nigel Winter, Partner in the Family Law Team at DMH Stallard states: 'He is absolutely right. Since 1996 1.7 million people have assigned blame in the divorce process to their spouse; it is ludicrous, but to some extent the system encourages them to. The problem reached such a pitch that it stimulated The Daily Telegraph headline in August 2019 that 'thousands of couples exaggerate marriage faults to get to divorce'.'
Nine out of 10 family lawyers agree that the current law makes it harder to reduce conflict and confrontation both during the divorce process and afterwards.
In assigning blame - be it adultery or unreasonable behaviour (two common grounds of a total of five) they are engaging in something of a pointless exercise as the reasons for divorce make no difference in respect of a financial settlement or the arrangements with regard to the children.
That this law is badly in need of reform is exemplified by Scottish law which is completely different. On one side of the border (England & Wales) 60% of divorces are granted on either adultery or unreasonable behaviour grounds. By contrast in Scotland, it is only 6%. Winter continues: 'In short we are woefully behind the times. Indeed we are decades behind the times – the old law (enshrined in The Matrimonial Causes Act 1973) all but compels the apportionment of blame on a legal document. No body likes to read that they behaved ‘unreasonably’ - divorce is difficult enough.'
In the weeks and months ahead you will hear about the progress of this consultation. However whilst the notion of no fault divorce was initially part of the Family Law Bill of 1996, the change of Government the following year prevented its introduction. The opposition now state that they are committed to no fault divorce and with the social changes of the last 22 years the chances of its introduction have never been better.
Currently there are alternatives and the legal profession has developed ways of alternative dispute resolution (ie Collaborative Law) that are years ahead of anything enshrined in the statute book. Although there is an increased likelihood of reform and it is very welcome, it will not happen overnight. However it is possible to obtain an amicable divorce currently but we just hope that the process will very shortly be made easier.
Nigel Winter is a Partner in the Family Law Team at DMH Stallard and a Collaborative Lawyer based in our Horsham office. Click here to view profile.