Family Law Myth 1 – The “no fault” divorce

In the next few weeks, we would like to highlight some of the misconceptions surrounding divorce and family law. We start with the issue of the “no fault” divorce as this has been discussed at length in the media as a result of the Owens v Owens case.

This “no fault” divorce myth encompasses a number of misconceptions; the clarity is in the detail rather than just the meaning of the words themselves.

“No fault” or “no blame”, in relation to divorce, has been recently very much in the media thanks to the case of Tini Owens, who was refused a divorce after 40 years of marriage when in March, the Court of Appeal upheld the ruling that her husband’s behaviour was not “unreasonable”.

The decision has both rattled and unified the overwhelming majority of family lawyers into more vociferously demanding that the 40-year-old legislation for England and Wales, which determines when and how a couple can legally divorce, should be scrapped in favour of the no-fault system used by many other countries. Resolution, the national organisation of family lawyers committed to non-confrontational divorce, has been campaigning for many years for the introduction of no-fault divorce and an end to the “blame game” that is integral to the present fault-based divorce laws.

In an era when collaboration, mediation and other means of resolving disputes without time-consuming, confrontational and expensive litigation, it is somewhat strange that the rules governing our divorce process provide for it to start on a confrontational basis with one party blaming the other for the breakdown of the marriage.

As the law currently stands, there are essentially only five criteria to consider when wanting a divorce and only two if you are seeking such a divorce within two years:

  1. Adultery - Your spouse/civil partner has committed adultery (they cannot rely on their own adultery) and you find it intolerable to live with them. It is not possible to rely on this fact if you have lived together for a period totalling 6 months after discovering the adultery;
  2. Unreasonable behaviour - Your spouse/civil partner has behaved in such a way that you cannot reasonably be expected to live with them;
  3. Desertion - Your spouse/civil partner has deserted you for at least 2 years;
  4. Living apart for two years and both parties agree to the divorce happening on this basis; and
  5. Living apart for five years – agreement is not required from both parties.

So even if both parties agree that the marriage is over and that it is in the best interests for all those concerned for there to be a divorce, for it to happen within two years they are left with the choices of either citing adultery or unreasonable behaviour.  If neither criteria is actually the cause of the marital split, (as in life reasons can be many and varied and in reality it is rarely the case that one party is 100% to “blame”), they must choose one, even if needing to lie or exaggerate, in order to proceed. 

Realising the existence of these outmoded criteria suddenly makes the vast array of media reports which focus on infidelity, especially those around celebrity couples, a great deal more comprehensible. It is not just about trying to sell papers; it is just reporting the legal trigger for divorce proceedings to start.

It also illustrates the real need for law reform to enable couples to part, where possible, with balanced responsibility and reasonable care, without the legal requirement for one party to take the burden of the “blame” just to get the process going. 

There will always be exceptions, as in the case of Mr Owens, who will cling to the law in the hope that his marriage will return to its former state. Although these kinds of cases, known to family lawyers as “defended divorces” are already very rare as good family lawyers tackle the “blame” issue head on at their first meeting with the client in an attempt to ensure that the if there is to be a divorce the basis on which it is to happen can be agreed in advance and in as pragmatic and non-controversial way as possible.

To start a process, in which one party is seen to be at fault and to blame for the breakdown of the marriage and other party essentially being positioned as a victim, is not conducive to creating a fair and level negotiating position from which to manage the separation of two people, the division of their assets and their mutual responsibilities, particularly at a time when stress levels are high and emotions are often taking precedence over practicalities and common sense.

Putting aside the call for law reform, reignited by the decision in Owens v Owens, there is a more constructive and second angle to the “no fault” myth.  Although for the spouse driving the divorce, there is the requirement to decide on the basis to commence - usually adultery or unreasonable behaviour – the truth is that the reason given for the marriage failure is likely to have little or no impact on the eventual financial settlement.  Another myth emerges that to be at fault will cost you financially.

You may read in the newspapers, for example, that the spouse with the greater assets has admitted to adultery and myths abound with moral indignation that he/she will pay for his/her sins by having to compensate with a greater pay-out for the injured party. In reality, whereas our laws may still be based on a social and family structure of the 1960s, the judiciary are on the whole more enlightened and living in the 21st century.

In the case of a husband having an extra-marital affair and admitting to this in order to facilitate the commencement of divorce proceedings, this does not mean that the wife will get a greater share of the assets than she would have received if the husband had been faithful. 

Bad behaviour is not to be condoned but in reality there is normally no correlation (other than in certain rare cases of serious financial misconduct) between the apportionment of the assets and the scale of the marital indiscretion. The proceedings take place in a court of law not a court of morals. Once financial proceedings commence, there is normally no need for further reference to why the marriage has broken down; the focus is on fairly sharing the assets.

There can be many reasons why a party feels that they should not held to be at fault or to blame for the breakdown of the marriage or why they might not be the one who has to start a process that “blames” the other when they want to bring their marriage to an end.

The time has therefore come for reform – whether there is or will be the political will to do this is a different question. However if it does happen it is important that it is understood that this is not about making it easier or quicker for people to divorce – this can already, potentially happen in 3-6 months if the parties cooperate and wish for it to happen – it is about ensuring that a couple who no longer get on are able to manage what will be the beginning of a difficult (and potentially lengthy) separation process in a way which will give them the very best possible chance of managing that process as amicably as they possibly can to their benefit and more importantly for the benefit of their children. 

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