Should ‘No-Fault Divorces’ Be a Standard to Aspire to in Family Law?
Sir Nicholas Wall, president of the family division at the High Court, has recommended that no-fault divorces should be standard for all separating couples in England and Wales. The family law judge believes that removing the element of blame in divorce proceedings would speed up the process for all those concerned. This ought to make life easier for litigants, while reducing their legal costs. Not everybody is convinced, however.
Few divorces are amicable. Though many couples are in agreement when the decision to file for divorce is raised, others have mixed opinions. Sometimes the decision is unilateral. Sometimes it is made for different reasons. Married couples facing divorce are likely to disagree over fault, partly because they are upset about the dissolution, but also because they want to improve their prospects of receiving a favourable settlement.
Fault can in practice swing judicial proceedings that really ought to be administrative in nature. As most family law solicitors will testify, divorce can be extremely draining – both emotionally and financially – for all concerned. Culpability resides at the heart of most divorces, so it is perhaps only right that action can be pursued against those responsible for breaching the contract of marriage. Removing the element of blame from divorce proceedings could be likened to the removal of mens rea from criminal cases: without it an equitable verdict might not be reached.
The alternative view is that divorces appear judicial but are in fact administrative. Settlements ought not to be contingent on fault. Establishing the cause of a divorce could be described as a trivial matter in one respect, largely because settlements should not be based on whether one person was guilty of adultery, domestic violence, financial irresponsibility or whatever else. Judges calculate settlements on a number of variables, including the duration of a marriage, employment circumstances, personal assets, pensions, distribution of wealth, children, living arrangements and so on. Maintenance payments may require subjective analysis, but divorces are already administrative.
The former Labour government was opposed to implementing changes that would make no-fault divorces standard. Officials believed that removing the element of blame would make it far too easy for people to divorce. Instead, couples should work on resolving their differences through mediation or therapy. If a dispute cannot be resolved, the family courts should be called on to make a decision. That decision requires an element of guilt or wrongdoing to establish divorce. Blame can be shared, but it cannot be non-existent. Sir Wall wants to change this archaic process.
The country’s most senior family law judge believes there is no credible argument against no-fault divorces. He stresses that no partner should be viewed as guilty or innocent. Marriages should be capable of being brought to end without issues of fault arising. Society has moved on, he argues and the law needs to catch up.
In times of excessive litigation, reduced legal aid and rising cases of divorce, the most sensible way forward is clearly to remove the hurdle of blame from divorce proceedings. It matters not whether Harry met Sally, who then met Tom; ascribing blame to domestic issues in divorce cases merely increases the financial and emotional burden on both parties.