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23/11/2017

Divorce: Time for a change to the law?

Divorce is regularly cited as being in the top 3 of the most stressful life events that you can go through, so surely it follows that we should be trying to do what we can to ease that stress not add to it and help separating couples approach their divorce constructively.

Unfortunately, the way that the divorce process is currently set up encourages blame, even when separation is a mutual decision. At present one party to the marriage wanting a divorce has to either make allegations that their spouse has committed adultery or behaved unreasonably. The alternative is to wait at least two years following separation before the divorce proceedings can commence; very often neither option is particularly attractive.

Richard Buckley, Senior Solicitor at Eaton Smith Solicitors, says “Emotions are already high at the outset of any divorce and when one party reads allegations that they have behaved unreasonably and are to be blamed for the breakdown of the marriage it does not set the stage for constructive discussions on issues such as finances and arrangements for any children”.  

“Family justice has come a long way in recent years with the aim of decreasing conflict and suffering for families. In my view, the law as it stands is contradictory to these aims. It is archaic and needs to change to help promote constructive and amicable divorces”.

Whilst there is a growing call for the government to introduce “no fault divorce”, with the support of senior judges, many family lawyers and Resolution, the national family justice organisation, critics have argued that by doing so it will make divorce easier and therefore devalue marriage. However, a recent study published by the Nuffield Foundation concluded that there was no evidence from their study that the current divorce law protects marriage.

In the same study a worryingly high percentage of those surveyed, who had gone through a divorce, believed that their experiences of allegations of unreasonable behaviour or adultery within their divorce had made the divorce process more bitter (62% of petitioners and 78% of respondents). A significant proportion also believed that the allegations made it more difficult to agree on arrangements for children and/or their finances.

Richard Buckley said: “Parliament have previously attempted to introduced a no fault divorce as part of the Family Law Act 1996, but this part of the act was never implemented. Surely, in light of the recent research it is time for a change in the law, so that we can achieve better outcomes for families and especially children.”