Ruth Hawkins
Partner with Oxford legal firm Turpin & Miller

We currently have a divorce system in England and Wales which unfortunately still focuses on blame.

A couple cannot agree to divorce unless they have been separated for more than two years.

Anything less than that and one of them will have to blame the other for behaving unreasonably or committing adultery.

This can often create conflict and make it harder for them to reach agreement on more important issues such as children, finances and property.

As lawyers, we can sometimes end up spending several months arguing about who did what when it would be more productive to focus on other issues.

We also find a large number of people who to want to divorce amicably, but who are forced to blame each other in order to get a divorce.

In those cases there is often a charade of laying blame where no-one wants to.

The Family Law Act 1996 made provision for no-fault divorce to be introduced in England and Wales, but following opposition to the idea, it was scrapped by the then government.

There is growing consensus that people should not have to blame each other to bring their relationship to an end.

Resolution – an organisation comprising 6,500 family lawyers and other professionals – believes in a constructive and non-confrontational approach to all family law matters.

It has recently produced a manifesto which proposes a new divorce procedure, where one or both partners could give notice that the marriage has broken down irretrievably.

The divorce could then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce would be finalised.

They believe that it would increase the chances of success for non-court dispute resolution processes as it would immediately put both partners on a level footing.

Sir James Munby, who is the president of the Family Division of the High Court, and is therefore the head of the family justice system in England and Wales, believes that formally introducing “no fault” would “bring some intellectual honesty to the system”.

At present, he says: “A district judge has to go through the ritual of assessing whether the cited reason for a divorce is acceptable when both parties often agree that it is.

“The reality is that we have, and have had for quite some time in this country, divorce by consent in the sense that both parties wish there to be a divorce.

“If they’re able to establish the grounds for divorce, which it is very easy to establish, the process is essentially a bureaucratic, administrative process, albeit one conducted by a district judge.”

Many other countries around the world – including Australia, the United States and Spain – have already introduced law that allows for divorce without blame.

rhawkins@turpinmiller.co.uk