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Why a ‘no fault’ divorce would help warring couples

Cherry Reynard
Written By:
Cherry Reynard

January is a peak month for divorce. Kate Van Rol, Barrister at 4PB discusses the introduction of the new ‘no fault’ divorce and why it could change the landscape for couples who split.

Last month (December) the Government have closed a consultation which looks to introduce no-fault divorce in the UK. The Labour Party have criticised the Government’s decision to have a consultation and argued that they “should just get on with changing our divorce laws so that they are fit for the 21st century”.

Why are people so desperate for reform?

Part of the reason stems from an important judgment this year – Owens v Owens. In this case, the judge ruled that Tini Owens must remain married to her husband until 2020 as her husband refused to agree to a divorce and her lawyers were unable to provide enough evidence proving that the Owens’ marriage had broken down as a result of his unreasonable behaviour or adultery.

In many other cases, couples are recognising that arguing over who was at fault for the marriage breaking down makes the whole process take longer and cost more. For example, Boris Becker and his wife have finally agreed to stop alleging that the other caused the divorce. Both parties have been locked in a fierce battle over who was at ‘fault’ for the collapse of their marriage, with both petitioning fault against the other.  If no-fault divorce existed, they could have put aside their differences and concluded the proceedings sooner, while avoiding this expensive legal battle.

Becker and his estranged wife, Lilly Kerssenberg, have agreed that both parties will accept ‘fault’ and will be granted a divorce on grounds of unreasonable behavior at both ends. The events leading up to this point could have been bypassed if no-fault divorce was an option as ‘fault’ would not have to be identified. This would have taken some of the emotion out of the process and allowed the couple to get on with practical side of their divorce, the financial settlement – which is also still being argued in the courts. It is more than likely that neither party feel that they have achieved anything in arguing who was at fault; rather they have ended up with a costly legal bill for the pleasure.

Divorce is always going to be a difficult time for families, and with our system not reflecting societal change, it runs the risk of appearing archaic. Under our current legal system, couples can be granted a no-fault divorce if they have been separated for two years, if both parties agree to the divorce, or five years, if they don’t agree. However, this is not helpful for people who would prefer to move on quickly. In contrast, other jurisdictions have a far more modern approach to divorce – in Scotland for example, a couple have the option to divorce after one year’s separation (if they don’t have children under the age of 16).

How would no fault divorce make the process easier?

Our current divorce system forces someone to be at ‘fault’ for the ending of the marriage, which makes the situation more unnecessarily emotional from the get-go. Couples can become irate and then spiteful if they feel their soon-to-be ex-husband or wife is citing petty or untrue reasons for the break-up. This feeling can spill over into negotiations over assets or even child custody.

It’s not unusual to hear of couples doing irrational or even ridiculous things to get their hands on assets before a divorce is finalised. Earlier this year for example, the New York press was abuzz with a contentious divorce between Sue and ‘Wall Street titan’ Bill Gross. Mrs. Gross swapped a 1932 Pablo Picasso painting entitled “Le Repos” from the wall of the marital home with a fake she had painted, before the divorce had been finalised. He also stated other items had disappeared from the house, such as a Tiffany clock, 20 bottles of wine, Christmas decorations and a 1,000-pound-statue.In this particular case, Mrs. Gross had been the one to file for divorce, citing irreconcilable differences, and yet she was still driven to extremes to preserve and/or hide assets – it’s such an emotional time for couples that their behaviour can become unrecognisable. The introduction of no-fault divorce will help reduce the emotional approach to the process.

There is no denying that children can be one of the most affected parties in a divorce and their own mental health can be impacted. A recent YouGov poll has found that 79% of the population agree that conflict from divorce or separation will negatively impact children’s mental health and of those questioned, 77% found that the conflict surrounding a divorce could affect a child’s academic performance. It is thought that the introduction of no-fault divorce could lessen the stress for all involved.

It is essential that no-fault divorce is introduced next year to help reduce the long-term financial and psychological impacts of divorce for all involved.

Kate Van Rol, Barrister at 4PB