The introduction of no-fault divorce requires a change in the law.  The most recent attempt to introduce legislation that would facilitate no-fault divorce was within part 2 of the Family Law Act 1996.  Pilot schemes were set up in which couples were required to attend ‘information meetings’ (required within the Act) that encouraged reconciliation.  However, in 2001 the government decided that the proposed system was ‘unworkable’ and dropped the proposals.  The act was then repealed.  At the time, the government said that it was committed to exploring the introduction of no-fault divorce and has since indicated that legislation to introduce it must come as part of further possible reform of the family justice system.

What is the law currently?

Currently, divorce can only be sought based on the fact that the marriage has irretrievably broken down. The person seeking the divorce (petitioner) has to rely on one of three fault-based or two separation based facts that are:

• adultery (fault)
• unreasonable behaviour (fault)
• two years’ separation with the agreement of the other party
• five years’ separation without the agreement of the other party
• desertion (fault)

What does research say?

Research shows that couples may be citing fault as a quicker way out of their marriage. According to statistics produced by the Office for National Statistics (ONS) in 2016 (the latest statistics available), 57.7% of all divorces were based on fault.   Compare this to Scotland where a divorce can be obtained after one year if both parties agree, and where only 6% of divorces were based on fault (2015 figures).

When the Nuffield Foundation funded research asking people involved in a fault-based divorce if the reason given in the petition was the real reason for divorce, 29% of divorce respondents said it was not. Also, 65% of petitioners said that the fact they had used only closely matched the actual reason for the divorce.  Previous research carried out by YouGov in 2015 found that 27% of couples who cited fault in their divorce said that the reason given was not true but that it was the easiest way to get a divorce.

Some other conclusions of Nuffield’s research in 2017 are:

• 43% of the people surveyed who were respondents said they disagreed with the reason given for divorce by their spouse and 37% denied the reasons given in court.
• There is uncertainty about what ‘unreasonable behavior’ means and this makes it difficult for the law to be ‘intelligible, clear and predictable’. For example, it seems that understanding of what is needed to prove physical violence has changed as petitions citing it have dropped from 64% in the 1980s to 15% now.
• 62% or petitioners and 78% of respondents said that citing fault had made the process more bitter.
• Sorting out arrangements for children and finances had become more difficult when citing fault.
• There is no evidence that people would rather stay married than cite fault as the reason for their relationship breakdown.

What does the judiciary say about no-fault divorce?

Sir James Munby, president of the Family Division is an avid supporter of the introduction of no fault divorce and has said that divorce should be taken out of the hands of judges and dealt with by a registrar, in the same way as births, deaths and marriages.  He has said that the introduction of no-fault divorce would not make divorce easier as “in reality, 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.” Sir James believes that introducing no fault divorce would “bring some intellectual honesty to the system”.

Other senior members of the judiciary who have publicly called for the introduction of no-fault divorce include:

• The late Sir Nicholas Wells, then president of the Family Division in 2012
• Baroness Hale of Richmond, then vice-president (now president) of the Supreme Court in 2014, 2015 and 2017
• Lord Wilson of Culworth (Supreme Court judge) in 2017

Other support for no-fault divorce

In its Manifesto for Family Law, launched in February 2015, Resolution called for blame to be removed from the divorce process as it creates conflict and makes it difficult to come to a mutually acceptable agreement. It proposes a system where both parties give notice that the marriage has broken down and, if they haven’t changed their minds after six months, the divorce is finalised. The organisation believes that this will not only increase the chance of couples finding resolution without going to court, it will also reduce the burden on the family courts.  Resolution does not believe that removing fault from divorce will change people’s propensity to divorce.

Also, the Family Mediation Task Force believes that removing fault from divorce will increase the uptake of family mediation.

The Times’ ‘Family Matters’ campaign, which was launched in November 2017 with the Marriage Foundation, calls for family law to be modernised.  The campaign is supported by many in Parliament, including Lord Mackay of Clashfern and Baroness Butler-Sloss.

In 2015, MP Richard Bacon made a case for a new no-fault divorce bill under the ten-minute Rule. The bill did not proceed any further.

Bradie Pell, partner and head of Graysons’ family team says “No-fault divorce could reduce acrimony and provide relief for families trying to sort out children and financial matters.  The Supreme Court has recently heard an appeal in the case of Owens v Owens, in which Mrs Owens has been denied a divorce in the family courts as she has failed to prove that her husband has ‘behaved in such a way that she cannot reasonably be expected to live with him. The result is eagerly anticipated, as, whilst judges do not make the law – an Act of Parliament is required – the decision should have a significant impact on whether there will be a new push for the introduction of no-fault divorce.”

Opposition to no-fault divorce

Those who oppose no-fault divorce say that making it easier to get a divorce will have a negative impact on relationship breakdown and will increase the divorce rate.  Opposers include the Coalition for Marriage.