No-fault divorce - what it will mean « McAlister Family Law

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No-fault divorce - what it will mean

Amanda McAlister

07.06.2020

The legislation for no-fault divorce is long overdue, and I welcome the Bill on the grounds that it will create a kinder, fairer and more transparent divorce process for those whose marriages and civil partnerships have already broken down.

The new legislation aims to overhaul divorce law and reduce family conflict, and comes following overwhelming pressure from senior judges, lawyers, politicians and members of the public amid calls for reform. Parallel changes would be made to the law governing the dissolution of a civil partnership.

Under the current 50-year-old divorce law, there is a legal requirement to find a so-called ‘guilty’ party which often leads to children being caught in the middle of a fractious and deeply upsetting process.

Currently, the limited set of grounds for divorce under the existing Matrimonial Causes Act 1973 requires an applicant to either prove their partner is at fault through adultery, desertion or unreasonable behaviour, or if both sides agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants should wait until they have been living apart for five years.

In my experience, it is this concept of "fault" that often fuels the fires of conflict, leading to bitterness, upset, resentment and more, and when children are involved, can have long-running consequences which impact the ability of separated or divorced couples to co-parent decently, and fairly.

As the Marriage Foundation has previously remarked, it is absurd to try to pin 100% of the blame/innocence on one party in a relationship that involves two.

I can cite the case of a lady in her late 50s she recently attended, who wanted a divorce, but when the process as it currently stands was explained to her, felt she couldn’t go through with it as putting “blame” in the divorce petition would be too painful for all concerned.

This new Bill would help her, and anyone else in a similar situation.

I also took issue with the idea that the Bill would result in many more so-called “quickie divorces”.

There is no such thing as a ‘quickie divorce, despite many believing such a thing exists. And if this Bill passes, couples will now have to wait at least six months to get divorced, enforcing in law a period of reflection, and the chance to turn back. Currently a divorce can in theory be granted within six weeks of an application, but once the Divorce, Dissolution and Separation Bill is passed it will take at least 26 weeks.

And as any experienced family lawyer will tell you, no two divorces are the same, and although I have dealt with divorces cases taking around six months from start to finish, these were cases where both parties agreed on all the key issues, and there were no court delays.

Yes, some couples may divorce in a shorter period of time than others, but that can be for a myriad number of reasons and either way, the process remains pretty much the same, and there are no shortcuts.

More generally, I'd say most divorces take between eight and 18 months to go through.

This Bill will help children going through what is often a hugely distressing time for them that can, in some very sad cases, have a lifelong, detrimental effect on them. It will reduce mud-slinging and remove the damaging belief that one of their parents is at ‘fault’.

It is entirely wrong that our current law creates, or increases, conflict between divorcing couples. I welcome this Bill.

 

If you are affected by the issues raised here, please get in touch today. We are here to help you.

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