Divorce term text in macro from dictionary book, highlighted word with a gold wedding ring placed on printed white paper page. Concept of family, relationship difficulties, wedding and divorce law.

Divorce law reform in England: It’s time to end the blame game

This month, the justice secretary, David Gauke has agreed to examine the case for reforming divorce law. This comes after ever growing pressure from campaigners, newspapers and senior judges to change the “unjust” and “outdated” laws that dictate when a couple can and can’t get divorced.

There are lots of changes that could be made to improve divorce law, but the one most archaic element which causes conflict, division and trauma is the need for blame.

Could the old divorce law in England be about to change?

Under English law, a couple can only divorce if their marriage has irretrievably broken down and they’ve either been living separate for two or five years (depending on whether they both consent to the divorce) or if one side can prove that the other is at ‘fault’. These faults are where the element of blame comes in and if the divorce goes to court, an argument over fault can be humiliating, embarrassing and traumatic for both parties.

These fault grounds can be either adultery, unreasonable behaviour or desertion. Unreasonable behaviour is the most common ground for divorce. The ground is a subjective test and will typically not be agreed by the other party.

A party would usually present around half a dozen different examples of unreasonable behaviour to the court and these can include examples of violence, threats, abuse, financial irresponsibility, and poor communication, which have caused distress, hardship and have ultimately caused the relationship to fail.

Needless to say, when proving these faults in court, what remains of a relationship between the two parties can immediately turn sour as the two battle over details that many would say are unnecessary.

More than 20 years ago, parliament voted overwhelmingly to remove the need for allegations of fault, but the bill was never implemented. Since then, Resolution, a group of 6,500 family lawyers in England and Wales including myself, have been calling for a more civilised alternative. It’s encouraging then that change could finally be on the horizon.

Resolution family law logoSo what should replace existing divorce law?

Resolution proposes a new divorce procedure where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of reflection (Resolution recommends six months) if either or both partners still think they are making the right decision, the divorce is finalised.

Mr Gauke has said that he acknowledges the strength of feeling on the issue and says he will “study the evidence for change” without “rushing to conclusions”.

While it’s frustrating that change won’t happen overnight, this is a sensible move in the right direction. After all, making divorce too easy defeats the object of marriage and people should never feel that divorce is the easy option. On the other hand, when a couple are no longer in love and they want to separate, it is probably more beneficial to them and to their children, not to be involved in any ‘blame’ culture.

At the end of the day, parents will need to communicate in an effective fashion to promote the needs and the welfare of their children – who are the parents and couples of tomorrow.

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