The Blame Game – Divorce

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The current law surrounding divorce has faced criticism for inciting a culture of blame between divorcing couples. The options for divorce under The Matrimonial Causes Act 1973 require one party to be at ‘fault’, with no options for a split based on mutual agreement, or simply upon the parties having fallen out of love.

Currently, if the parties choose not to place the fault on one party, they must instead stay married until they have been separated for a significant period of time, namely two years living apart by consent or living apart for five years. This is often not practical for couples who have children or limited incomes and so couples therefore often chose to place the fault on one another, in situations where there might not necessarily have been any. The law demands proof of unreasonable behaviour and often encourages a fault-based divorce.

The Problem with Encouraging a Fault-Based Divorce

There have been calls for change from many, including family justice professionals, with some deeming the grounds for divorce to be old fashioned and obsolete. The government have proposed new changes, promising to introduce legislation that modernises the terms for divorce and civil partnerships by removing the need for one party to be at fault. It will also allow for couples to provide a statement to show the marriage has irretrievably broken down, instead of the current requirement to evidence behaviour by providing a ‘fact’. The new potential legislation provides an option for a divorce without blame, in an attempt to protect the children of divorcing couples who can sometimes develop emotional, social and behavioural issues both during the divorce proceedings, as well as in the years that follow.

Establishing New Guidance in Divorce

The new guidance aims to provide a ‘reflection’ period for couples lasting a minimum of six months before the marriage is dissolved to allow for better future planning. This six month period is not a time-frame by which couples must resolve all their issues surrounding child custody and financial settlements but is instead an opportunity for couples to solve their problems without hostility towards each other and without ruining future prospects of co-parenting.

It is, however, uncertain when changes might come about, despite the Justice Secretary announcing the new law to help reduce family conflict in April 2019. It is thought that the new legislation will be introduced to Parliament as soon as parliamentary time becomes available in an attempt to remove the fault-based divorce that exists in current law and begin an era of no-fault divorces.

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Author Colin Freeman View Profile
Colin qualified as a solicitor in 1998. He specialises predominantly in family law, litigation / dispute resolution, wills, probate and settlement agreements and has notable cases reported in the Court of Appeal and High Court.
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