No-Fault Divorce – The Positives and Negatives 

Here, George Wilson looks at the positives and negatives of the new reform and discusses whether it’s a step in the right direction.

It is hoped by many prominent legal minds, including Baroness Hale, that the new no-fault divorce reform will reduce the relative stress and anxiety felt by separating spouses when going through divorce proceedings. It is also hoped that, by freeing up the headspace of those divorcing, more care, time, and attention will be given to tackling the other inevitabilities of a marriage breakdown, such as childcare issues and how to divide assets and income.

Many petitioners (the spouse issuing the divorce petition), under the current system, are forced to focus on the worst aspects of their relationship in order to recall the unreasonable behaviour of their other half for the sake of the divorce petition. Often, citing the perceived unreasonable behaviour of one spouse can create unnecessary animosity between divorcing couples, during an already difficult period in their lives, no matter how anodyne those particulars of unreasonable behaviour may be. Unfortunately, this seed of animosity and ill-feeling can then grow and spread throughout other aspects of the separation, making it more difficult to agree on matters involving money and children without the need for acrimonious court proceedings to be instigated.  Rather than moving forwards towards their own independence, many parties are emotionally stuck in the historic difficulties of their relationship, when asked to emphasise them in writing.

Divorce is seen by many people as a failure or a loss. But what about those trapped in an abusive or controlling marriage? Well, it is hoped that the new reforms will allow for a more accessible divorce system that will empower those who may have previously feared contested or protracted proceedings against an abusive partner, and the trauma that such proceedings would likely cause. Survivors of abusive marriages, or those trapped in unhappy relationships, will be able to end their marriage much more easily under the new reforms.

What about the negatives?

Despite the new reforms being thrust into the limelight with positives a plenty; no-fault divorce has not escaped controversy. Just as the positives for a no-fault system have been entrenched for decades, so have the negatives. In short, many opposers of the new reforms believes that no-fault divorce ultimately threatens the sanctity of marriage, either religiously or morally. It is worried that due to the more straightforward, and simple, divorce process, many parties will simply look to divorce during any rocky patches in their relationship rather than fighting on and working things out. People may simply opt to legally separate.

Furthermore, it is argued by many that the new no-fault system will allow abusive spouses, or those who have exhibited unreasonable behaviour or have committed adultery, to essentially get away with it without being held accountable. Often, as highlighted previously, an ‘offending’ spouses will have their unreasonable behaviour laid bare within a divorce petition. The new system will allow ‘offending’ spouses to avoid this and, in turn, will prevent the spouse on the receiving end of the unreasonable behaviour from having their say. It must be said that it is extremely rare for the unreasonable behaviour of one party to have any bearing on the financial aspect of a divorce.

One criticism of the new reforms, despite their relevance in todays divorce heavy society, is that there are more prominent issues within the Family Justice System, including reform needed in respect of children cases (both privately paying cases and those funded by the state) and an overhaul of how domestic abuse cases involving the complexities of issues such as coercive control and gaslighting.

Whether the new reforms will be a success is yet to be seen. It is important that legal practitioners, and the Court, get to grips with the new system as soon as possible to allow for a smooth transition.