“No Fault” and Finance: The Lords and The Flaws of “Friction-Free Divorce” 

Published on 12 February, 2020 | Hannah Baddeley

It’s now more than six months since plans to introduce the most substantial divorce reforms were set out in Parliament.

The then Justice Secretary, David Gauke, introduced the Divorce, Dissolution and Separation Bill in the House of Commons last June with a bold pronouncement that it would “make a genuine difference to many children and families” (https://www.thetimes.co.uk/article/bbf09df6-8e18-11e9-afbe-8bab2c71e5a4?shareToken=3b51fb393062a7f3613b57920a1b2482).

Since the current law (the Matrimonial Causes Act) became statute in May 1973, individuals petitioning for divorce have either had to do so on the basis of fact – claiming unreasonable behaviour, adultery or desertion – or else proceed on the basis of having been separated from their spouses for two years (something which requires the consent of their husband or wife) or five years (which doesn’t).

The argument of campaigners behind demands for ‘no-fault’ divorce had been that whilst most divorces are completed without rancour, the need to allege misconduct at least introduces the potential for conflict.

They suggested that fact-based petitions offered an opportunity for men or women to air their grievances about why they believed their marriages had broken down.

By removing that provision, so the logic runs, the divorce process becomes less confrontational and unpleasant for all concerned, especially any children there might be.

A glance at the most recent set of divorce figures, published by the Office for National Statistics (ONS) in November (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018) reveals that almost 60 per cent of the 91.027 divorces of opposite-sex and same-sex divorces in England and Wales during 2018 were fact-based rather than on the grounds of separation.

Those figures added weight to calls for Boris Johnson, to re-introduce the Bill after it failed to become law under his predecessor as Prime Minister, Theresa May.

However, not everyone is in agreement that a ‘no-fault’ law would mean divorces being entirely without friction.

Last week, during the Bill’s Second Reading in the House of Lords (https://services.parliament.uk/bills/2019-20/divorcedissolutionandseparation.html), Baroness Meacher explained how one of her colleagues, Baroness Deech, was sceptical “about the likelihood of the Bill being of any real benefit in reducing the blame game”.

She added that the concept of ‘no-fault’ divorce was “not a magic bullet” capable of eliminating possible conflict about how a couple would divide their assets or care for their children (https://hansard.parliament.uk/lords/2020-02-05/debates/81678CD1-63E7-4F5A-A70F-44E3B4A4EBEC/DivorceDissolutionAndSeparationBill(HL))

I have to say that the Baroness is quite correct.

Myself and my colleagues at Hall Brown Family Law are fully supportive of the ‘no-fault’ Bill, believing that any effort to reduce sensitivity associated with the delicate process of divorce deserves our backing.

Nevertheless, removing the potential for dispute from the administrative process of justifying the grounds on which a divorce decree is sought might well only result in transferring the possibility for conflict to discussions about a financial settlement.

Finances, it is true, are frequently something of a bone of contention.

If people can’t have their say about their partner’s behaviour, they may instead choose to dig their heels in even more and haggle over finances, regardless of how well-off or not they may be.

Again, official figures – this time made available by the Ministry of Justice (https://www.gov.uk/government/collections/family-court-statistics-quarterly) – reveal that one-third of all financial orders relating to spousal maintenance, pensions, property and ‘clean break’ lump sum payments were contested, either initially or throughout.

As Baroness Meacher herself suggested, ‘no-fault’ divorce could do with a companion Bill – legislation dealing with, as she put it, “the consequences of finance”.

With Parliament having resisted the prospect of changes to the current divorce law for the best part of half a century, though, the notion of reforming both the paperwork and the monetary aspects of the process in quick succession might seem unlikely for now, at least.