The new divorce system – the end of ‘the blame game’?
On 6 April 2022 the law in England and Wales regarding divorce changed. Before this change although married couples could obtain a divorce without making allegations of wrongdoing or fault against their former partner, they would have to wait until they had been separated for at least two years (if the other spouse consented) or five years (if the other spouse did not). You can get more information on the changes in our Q & A here.
Kevan Hankinson considers whether whose fault the breakdown of a relationship remains at all relevant in the family legal system.
The old way to divorce
For many couples this delay of at least two years very unhelpful. Some people simply wanted to move on with their lives. In other cases they needed formal proceedings for divorce to resolve urgent financial matters arising from their separation.
As a result, separating married couples who might otherwise have wanted a “no-fault” divorce felt they had little option but to put forward a case relying upon allegations of adultery or (most commonly) unreasonable behaviour, which could be started without delay. This in turn led to an uncomfortable business of at the very least having to agree some unpleasant allegations as a means to an end for a “quickie” divorce. In the worst cases, it meant sabotaging hope of agreement as hotly disputed and hurtful allegations appeared in court documents. This is what was meant when media articles about divorce refer to a “blame game”.
The benefits of no-fault divorce
The new divorce system removes this problem; not only is there no longer any need to wait for a “no fault” divorce, divorces based upon allegations of fault have simply been abolished entirely. The principle now adopted is that if one person wants to leave the marriage, the other spouse should not be able to prevent them. Furthermore there should be no requirement for the person seeking the divorce to explain the reasons why they want to end the marriage. The fact that they want to do so will be enough for a divorce to take place.
The changes have been pretty much universally welcomed by solicitors and others who work with separating couples. Indeed they have been widely seen as long overdue. An attempt to reform the divorce system was made in 1996 but failed due to poor reaction to the more complicated system that was proposed then.
This wish amongst professionals to remove fault from the divorce system arises for many good reasons. Focusing upon the question of whose fault the breakdown of a marriage is can make it much harder to reach the sorts of sensible compromises that are often needed to resolve the practical aspects of a separation. It can be very unhelpful, when in the end, however a person behaved as a spouse, they may still be someone you have to deal with as a parent for a long time to come.
Then there is the cost and the duration of contesting issues before the court and so conversely the advantages of reach agreements which may require both parties to move on from past disputes. Separating couples are widely encouraged to find ways to reach agreement, including by the court itself if a court has begun.
Further any party to a court case will find, whether in children’s cases or financial matters, that the court is reluctant (and in some situations entirely unwilling) to examine the reasons for the breakdown of a relationship or try to impose outcomes based upon the blame that should be attributed to one party over the other. Indeed, Judges will often comment on how badly equipped a court might be take a moral view about a private relationship and where much of what may have happened would have taken place behind closed doors. When the past such cases have been considered, they have been long, expensive and often left both parties feeling dis-satisfied with the outcome.
Is fault no longer important in the family legal system?
Does all this mean that the question of whose fault the breakdown of a relationship is is no longer relevant for couples who are separating now? The answer will depend very much upon the individual circumstances of each person. Whilst there are very few situations in which the family legal system would want to attribute blame in the breakdown of a relationship simply to vindicate or justify the views of one person over another, there are situations where the behaviour of a person during the relationship will be extremely important and will have to be dealt with.
The most obvious of these is regarding allegations of domestic abuse. There are a number of legal remedies to protect and support someone who is the victim of abusive behaviour and for both solicitors providing advice and courts dealing with separations these issues have to be carefully considered at an early stage.
In children’s cases where past behaviour indicates that a person may pose a risk to the welfare of the children or indeed to the other parent these questions of behaviour can become a central issue that needs to be resolved.
Behaviour (or “conduct”) is rarely going to be the focus of a finances case but there are certainly situations where deceitful or financially controlling behaviour around finances will become part of the problem to be resolved.
The recent changes do at last mean that it is no longer necessary or even possible to raise allegations of fault to get a divorce. They will be welcome for many married couples who can get on with practical and hopefully agreed arrangements to deal with their separation.
There will however remain situations where, whilst not seeking to attribute fault just for the sake of it or to vindicate one party over another, bad and abusive behaviour by one person will be important to how the separation has to be dealt with.
These can be very difficult issues. Many people find themselves in a position of great hurt and worry arising from a separation and even in situations where the conduct of one party will not be relevant in legal terms, some people will require other help to address these feelings. Others will need legal steps to be taken to protect their interests and to prevent further harm.
Each client and case is unique
In the end solicitors have to treat separating clients as individuals, with different situations and circumstances and often facing difficult and complex decisions. Getting the right help and support at the start can be key to ensuring that each person can understand how their experiences might be addressed. Hopefully a separation can be dealt with practically, constructively, and with an awareness of the need to find compromise where possible, but also sensitively, with understanding, and providing protection and support where it is genuinely needed.
Butcher & Barlow’s dedicated Family Law department are hugely experienced in all matters related to divorce, so please do not hesitate to get in touch should you wish to organise an initial consultation. Alternatively, please contact head of Family Law Kevan Hankinson on 0161 764 4062, or at firstname.lastname@example.org.