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Whose Fault is it Anyway…?
So you and your neighbours used to get along, but no more. They accuse you of all sorts of mischief; you accuse them back and that neighbourly friendship cannot be recovered. No matter, let’s all go and have a cup of tea together. Who cares if your neighbour accused you of poisoning their prized delphiniums and you accused them of letting their dog in to poo in your garden. So that cup of tea…realistic? Not really, and nobody would expect it to be. Yet for decades separating couples in England and Wales have been faced with needing to accuse their spouse of a fault in order to obtain a divorce, unless they want to wait 2 years from the point of separation until they can start divorce proceedings (and even then if the other spouse does not agree to the divorce at that stage, they must wait until they have been separated for 5 years). With a background of either bad behaviour or adultery, these couples are expected to try to reach an agreement on finances and children.
 
Until the recent case of Owens v Owens [2018] UKSC 41, the practice of most family lawyers in drafting a behaviour based divorce was to cite a handful of reasonably anodyne allegations that would be considered to be enough to show the marriage had broken down but would minimise the hostility between the divorcing couple. The Owens case has led us to re-evaluate the damping down of allegations, in case the court decides there is insufficient evidence of marital breakdown. Though it is the rare case in which someone will be able to stop a divorce by defending it, Owens showed all that it is possible if a party is stubborn and unwilling to compromise.
 
So it was with relief that the government recently confirmed it would consult on introducing no fault divorce. This will not be the first time a government has looked at changing the law. The Family Law Act 1996 had a section that would have introduced no-fault divorce, however that part of the Act was never enacted and has now been repealed. The usual justification for failing to support such a change by “family values” politicians is that changing the basis for divorce to purely no-fault will undermine marriage. This is simply not the case. In the not too distant old days, before the massive cuts which have caused significant delays, it used to be possible to obtain a divorce in as little as 3 months (the so called “quickie divorce”). Realistically with court delays it is more like double that these days, but the point is that a fault based divorce can result in much faster divorces than a separation based divorce.
 
The need to blame one person for the breakdown of a marriage is unfair and often encourages people to lie. Very often the breakdown is caused by both parties whether actively or simply because they have grown apart. In the latter case, someone who wants a divorce may exaggerate or make up accusations. Particularly where there are children and an ongoing relationship is required to parent the children, this is to say the least, unhelpful. Getting rid of fault based divorce will reduce conflict and that can only be a good thing, especially when there is a need to deal with finances and/or children. 
 
There are very few people who would not consider marriage to be a choice in life. Politicians are doing what they can to stop forced marriages. People can run off to a registry office and get married with 28 days’ notice and having given no particular thought about whether it is the right thing to do. Why should it therefore be so much harder to exit a marriage? There are few family lawyers out there who are not keeping their fingers crossed that common sense will prevail.

Stephanie Wells