The Fault in the No-Fault Divorce Bill
The campaign for a no-fault divorce is gaining in popularity and strength. There are articles and commentary appearing regularly in legal online publications, and research is being conducted by the University of Exeter (you can find out more by visiting findingfault.org.uk
The No Fault Divorce Bill (HC Bill 77) proposes that where couples are in agreement about divorce/civil partnership dissolution and wish to mutually divorce on the grounds of “no-fault”, then providing they both sign the documents stating thus, the divorce/dissolution can proceed; however, there is a proposal of a 12-month delay in between granting the Decree Nisi and the Decree Absolute. A whole year.
Richard Bacon MP (the Bill’s sponsor ) explains why:
The only other provision in my Bill would be a cooling-off period of one year before a decree of divorce could be made absolute, so that couples would have time to reflect on whether a divorce was really what they wanted.1
Surely the ideal time for a cooling-off period for couple to reflect if divorce/disolution is really the solution for them should before any proceedings are initiated, and not after the granting of the Nisi? This 12-month delay provides no real advantage to anyone and there is no legal or procedural reason for such a lengthy delay. What is concerning is that in among the many, many articles about the No Fault Bill is a lack of discussion about this year long delay between the Nisi and being able to apply for the Absolute. Any prescribed period of reflection should really come before submitting the divorce petition. The 12 month delay isn’t there to protect those couples who divorce using the mutual no-fault, and to allow them time to consider fully – if it were then that period of time would be mandatory before beginning divorce proceedings. It’s a bit odd really.
What we will end up with is effectively a two-tier divorce system – one where petitioners can cite “fault” or the mandatory long periods of separation, and where the divorce could be completed within a few months, and the other where couples agree to mutually divorce on the grounds of no-fault but have to wait much, much longer to complete the divorce process; taking into account the current timescales and the 12 month “waiting” period, a “no-fault” divorce could take 14/15 months or so to be finalised.
I would think that this 12-month delay would actually be a barrier for those who may wish to seek a no-fault divorce – meaning that the option to use unreasonable behaviour and therefore a potentially quicker resolution, is more appealing. Given that unreasonable behaviour can be anything from physical abuse to leaving the toilet seat up repeatedly there is a very wide scope of human behaviours and habits that can be cited as examples of the respondent’s alleged behaviour that makes it unreasonable to expect the petitioner to remain in the marriage.
Mr Richard Bacon also spoke of the desire for couples to receive counselling and for the Judge to inquire what efforts the couple had made to seek relationship counselling:
I would favour easier access to counselling. I would also favour more discretion for the judge to inquire into the intentions of the couple and the extent to which they had sought counselling. I would not object to making some form of counselling mandatory.1
I too would favour easier access to pre-divorce counselling. In Australia, couples who have been married for less than 2 years and are seeking to divorce must attend counselling to show that they have considered reconciliation. This counselling is compulsory. There is one ground for divorce in Australia, that being irretrievable breakdown and this is evidenced by a 12-month separation period. This usually means the establishment of two separate households. Fault such as adultery, cruelty etc are not relevant to this issue.2
There is a clear consensus that divorcing couples don’t always want to apportion blame on one or other, that some divorcing couples do wish to mutually divorce on a no-fault basis and it is right that the current legislation is revisited to make provision for a no-fault divorce option.
I would argue that we already have “no-fault” divorce with the separation periods of 2 and 5 years; there is a clear need to reduce the current separation periods on which people may use as a “fact” (or ground) – 2 years with consent is too long, and 5 years with no consent required is definitely too long. There also needs to be a heavier burden of proof of unreasonable behaviour. I would strongly favour – and support – a move to a no-fault divorce based on shorter separation periods (1 year with consent, 2 years no consent required), and strong encouragement to divorcing couples to agree on the financial resolution and child arrangements much earlier in the divorce process. In Scotland, a divorce application cannot (usually) be submitted to the Sheriff court until the matters relating to child arrangements and financial division have been agreed upon and set out in a legally-binding Separation Agreement (similar to the Consent Order) – this makes much more sense both practically and in terms of couples coming to an earlier and amicable resolution, with the actual divorce process then being the final part of the process. But perhaps a call to mirror the Scots process is a step too far at the moment.