Proposals for the introduction of ‘no fault’ divorce in England and Wales date as far back as 1990, Supreme Court President Lady Hale noted in a recent speech.
Appearing earlier this month at the International Centre for Family Law, Policy and Practice, the veteran legal academic gave cautious approval to the Divorce, Dissolution and Separation Bill, which is currently making its way through Parliament.
This will remove the current requirement to cite one of five specific ‘facts’ when applying for divorce. Three of these allege wrongdoing on by the applicant’s partner: adultery, unreasonable behaviour and desertion. This has been a source of controversy for decades, with campaigners claiming it encourages divorcing couples to blame each other for the break-up.
But the concept of so-called ‘no fault’ divorce worries others, continued Lady Hale, because they believe it will encourage a casual approach. In her speech, Lady Hale said she expected such concerns to be voiced again as the bill moves closer to the statute books.
“Some might (no doubt will) argue that the moves to adopt a wholly ‘no-fault’ ground for divorce will weaken the stability of marriage and civil partnership.”
But the idea has been discussed for decades she added.
“This [the Divorce Dissolution and Separation Bill] bears a remarkable resemblance to the proposals which the Law Commission made back in 1990: the replacement of the need to prove facts before getting a decree with a waiting period during which the post-divorce arrangements can be agreed.”
But, Lady Hale insisted:
“…the idea is to strengthen the system by reducing the acrimony involved in having to prove facts and so create a better climate for making amicable agreements about the financial and child arrangements.”
However, the distinguished legal academic was less complimentary about a second divorce bill currently proceeding through the House of Commons, after completing its passage through the House of Lords. Introduced by crossbench peer Baroness Deech, the Divorce (Financial Provision) Bill would make further radical changes to marital legislation, including limiting spousal support to just five years in most instances and making both pre- and postnuptial agreements legally binding.
Lady Hale, who is due to retire in January, contrasted the Deech bill with the emphasis placed by current legislation on the individual circumstances of each family.
“I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions when the parties cannot be helped to agree something sensible. But I question how one size fits all can possible meet the justice of the case or fulfill the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases.”
Such developments are part of a broader pattern, she claimed.
“Spouses and civil partners do still have mutual obligations to support one another, although the ‘tailor-made’ approach of English law to financial provision after divorce is increasingly under attack.”
Read Lady Hale’s speech, entitled What is a 2st Century Family?, here.
Photo of Supreme Court building the Middlesex Guildhall by Christine Smith via Wikipedia (Creative Commons)