No Fault Divorce. Avoiding the Blame Game

Do we have a no fault divorce system? If so, what is it and does it matter? Rebecca Woodley, family solicitor at Fraser Dawbarns LLP discusses this.

In the UK, we supposedly have a no fault divorce system. This means our system does not blame either party for the breakdown of the marriage. In the vast majority of cases neither party is solely responsible for the breakdown. Any kind of investigation as to who is responsible can only damage the parties’ relationship even further.

Does blaming one of the other of the parties actually help either party, the children or the court to deal with the marriage breakdown?

Many clients I see have not yet been separated for two years, so I inform them the only way they can proceed with a divorce at the current time is to base the divorce on the other person’s adultery or unreasonable behaviour.

Frequently clients do not want to proceed on this basis and would rather have a no fault divorce. They are dealing with the breakdown of the marriage amicably. Often clients have agreed the arrangements for the children and they have a tentative financial agreement that they are hoping to finalise.

They recognise that if they issue divorce proceedings now based on the other party’s adultery or unreasonable  behaviour, this is likely to upset the other party which could lead to problems in the arrangements for the children, or in relation to agreeing financial matters.

There is only one ground for divorce and that is irretrievable breakdown of marriage. The problem is that this then has to be referenced to one of five facts:

  1. Adultery
  2. Unreasonable behaviour
  3. Two years’ separation with consent
  4. Five years’ separation
  5. Desertion

Based on facts 1, 2 and 5 we do have a fault based system because to succeed on a divorce we have to prove the other party committed adultery, has behaved unreasonably or has deserted their spouse.

To make matters worse it is still possible to ask the court to order the other party to pay the costs of the divorce. In relation to points 1, 2 and 5 above, because we are blaming the other party for the breakdown of the marriage, the court will usually make such an order.

This means at a time when we are trying to limit the issues in dispute between the parties, we can actually end up increasing those issues and arguing over who is to divorce whom, and who is to meet the cost.

Alternatively, one party will just issue proceedings based on the other’s behaviour in circumstances where it is perhaps obvious that the issuing party is equally to blame for the breakdown of the marriage , and include a claim for costs. All this leads to the relationship between the parties deteriorating and they will then struggle to agree other issues relating to the children or financial matters.

This is a fairly hot topic. Divorce lawyers have for many years attempted to persuade various governments to adopt a no fault divorce into law. Unfortunately, our arguments have fallen on deaf ears and we have continued to operate the same system since 1973!

The family department at Fraser Dawbarns do their best to reduce the friction caused by a lack of a no fault divorce option. We inform respondents of the law and tell them that this is the only way we can proceed with a divorce at the current time.

We point out that the use of an adultery or behaviour petition is only a means to an end i.e. we are not blaming them for the breakdown of the marriage we just want to proceed with a divorce. Unfortunately our attempts are not always successful.

If you would like further advice regarding divorce or any other family matter, please contact Rebecca Woodley on 01366 383171.

This article appeared in the Winter Edition of the North Norfolk Living Magazine which can be read here.