On 13October 2015 there was a first reading of MP Richard Bacon’s private members bill proposing a change to the law in relation to divorce.
What is the current law?
The current legal position is that to obtain a divorce in England and Wales you need to establish that the marriage has broken down irretrievably. This requires you to rely on one or more of five facts or situations. These are:
1. Adultery
2. Unreasonable behaviour
3. Desertion for a period of two years
4. Two years separation with consent
5. Five years separation
Unless a spouse is willing to wait for at least two years from the date of the separation then he or she must issue a divorce petition which is either based on adultery or unreasonable behaviour as a reason for the marriage breakdown. In both of these cases it is necessary to cast blame on the other party as the allegations are fault based.
What exactly was the proposed change advocated by the South Norfolk MP?
Richard Bacon is proposing a change to the law to add a sixth fact as evidence that the marriage has broken down. He is proposing that if there is an agreement between the parties that there should be a divorce then a signed declaration by each party to the divorce that the marriage has broken down should be sufficient.
He argues that the time has come to introduce divorce without blame. Reliance is placed on the fact that in 2012 official figures show that over 72,000 divorce petitions included allegations of adultery or unreasonable behaviour. Resolution – First for Family Law, the national organisation of Family Lawyers committed to non confrontational divorce, separation and other family issues has lent its support for the debate. Resolution claims that the fault based nature of divorce is actually driving over a quarter of divorcing couples to make false allegations because it is the easiest way of securing a divorce.
What do the Judges think?
Lady Hale, Britain’s most senior female Judge, has already expressed her support for “no fault” divorce in England and Wales. However she has expressed the view that couples should be made to sort out arrangements for children and money before obtaining a divorce as part of the overhaul. This has not been proposed by Richard Bacon. However he would like to see a “cooling off” period which could be 12 months before a divorce could be made absolute because he considers that marriages were sometimes “saveable”.
The proposals put forward by Richard Bacon do not go as far as supporting the views expressed by Sir James Mumby who is the most senior family Judge in England and Wales. He has said that it is time to consider removing the need for a Judge to oversee “divorce by consent”. He has expressed a view that “no fault” divorce could then be handled by a Registrar of births, deaths, marriages and divorce as a purely administrative matter. Many commentators however would agree with Richard Bacon that divorce should remain a legal process.
What is, however, very clear is that the law needs to be updated to bring it into the 21st Century in order to minimise the acrimony in the divorce process between separating couples.
There are many commentators who take the view that if somebody wants a divorce enough they are going to get it. They maintain that there is no benefit in making it difficult to obtain a divorce as although making it more difficult may be beneficial for the divorce statistics, warring couples are going to remain separated whether they are divorced or not.
How is the private members bill progressing?
There is to be a second reading of the bill in the House of Commons on 4December 2015. This is the first real House of Commons hurdle. If the bill successfully gets its second reading then it will go to the committee stage. Although there is a lot of support for there being no fault divorce, it is unfortunately a well known fact that a private members bill is not part of the Government’s plan for legislation and such bills rarely become law. It really needs the Government to get behind the push for no fault divorces in the common for there to be a real prospect of the law being changed.
To discuss divorce and family law please call Wendy on 0113 230 5000 or email @email
