Baroness Hale Restates the Case For ‘No-Fault Divorce’
Baroness Hale Restates the Case For ‘No-Fault Divorce’
The president of the Supreme Court, Baroness Hale of Richmond, has said that there is a need for the law to recognise an option for “no-fault divorces.”
Speaking at a conference of family law specialists in Bristol, Lady Hale said that the current law’s preoccupation with assigning blame creates unnecessary conflict between divorcing couples and prolongs proceedings. It starts the whole proceedings off with a “blame culture” which as family lawyers we are then expected to stamp that out so that a conciliatory approach is taken in the related children and financial proceedings.
She also responded to criticism that opening the legal possibility of a no-fault divorce would undermine the commitment of marriage by arguing that the current system promotes unfairness and does no more to deter divorce.
Under the current law, grounds for divorce include adultery, unreasonable behaviour, desertion or separation for a requisite amount of time.
“There is no evidence at all that having to give a reason for the breakdown makes people think twice,” said Lady Hale, adding “The decision to divorce is not taken lightly, but this is not because of need to give prove one of the five facts.”
By the time people begin to look at the grounds for divorce and what they need to do to action it, they have probably spent months deciding what they want to do and whether they want to end their marriage. Considering the grounds and the way in which they can do it is probably the last hurdle hence it is unlikely to be the main driver in the decision-making process.
By contrast, she told lawyers that no-fault divorces could remove “discriminatory” elements of the current system. As it stands, “Respondents are encouraged by their lawyers to ‘suck it up’ even though the allegations are unfair,” she said.
It is true to say that most family lawyers are somewhat unconcerned with the grounds for divorce. We are often instructed to proceed with behaviour petitions when the matter is otherwise amicable, as parties once they have made that decision to separate simply do not want to wait for two years to move on with their lives.
Baroness Hale also discussed her support for extending the legal option of civil partnerships to heterosexual couples and recognising some spousal rights in property for unmarried couples, saying that this could protect and strengthen familial rights and responsibilities.
Addressing the recent shift away from indefinite financial maintenance awards in settlements, Lady Hale said that England and Wales should not follow the Scottish courts in awarding limited, fixed-time maintenance grants as a default, as there were some situations where an indefinite, lifelong maintenance awards would be fairest This in y view is entirely fair – each case needs to be decided on its own merits and to suggest a default period would undoubtedly result in financial hardship for some and inevitable unfairness.
Making divorce easier would lighten courts’ load
The introduction of a no-fault divorce and other modernising measures in family law could lighten the current burden on the family courts, which have faced additional pressures in recent years from court closures and funding cuts.
In addressing the Bristol conference, Lady Hale spoke in support of new, simplified “one stop shop” online divorce petitions which aim to make the administrative process more efficient.
An online divorce petition system is planned to be launched nationwide this year, after a successful pilot scheme produced a 33% drop in petitions rejected due to errors. The measure is hoped to save court staff 13,000 hours a year in administrative tasks.
The family courts’ overburdened workload has been blamed by some for the prevalence of simple mistakes being made in the legal administration of divorces. Anything which is going to assist the courts in improving the service they are currently offering and reducing the delays can only benefit the parties using the court system. At the moment the delays in dealing with other matters are causing financial hardship for some.
Sir James Munby, President of the High Court’s Family Division, has noted that mistakes made “in a number of [divorce] cases” may have left couples who think they are legally divorced in fact still technically married and compelled to recommence proceedings.
Sir James elaborated that the courts have purported to award divorces which were in fact “null and void” in law due to issues with the timeline requirements of filing for divorce.
While some couples may have submitted their petitions too soon after marriage, in other cases, courts may have formally finalised divorces before couples had spent enough time separated.
By law, a married couple must have been separated for at least two years in order to be divorced without other grounds if both parties are willing. A minimum separation period of five years applies if one party does not want to divorce.
The difficulty here is that divorcing couples are being encouraged to do it themselves yet the rules are such that there are traps into which they can easily fall and without advice those difficulties just get more and more complication, because the couple do not really understand where they have gone wrong, and the delays longer.
Guidelines on rectifying mistaken divorce cases
Sir James has issued guidelines to courts on dealing with cases of divorce mistake, saying that notifications must be served to couples who must now refile for divorce and that these notices should be “expressed in appropriately sympathetic and apologetic language.”
Margaret Heathcote, chair of family justice body Resolution, attributes the mistakes to an underfunding and closure of family law courts.
“The fact that the president has had to issue this guidance suggests there are basic mistakes being made that simply shouldn’t happen,” she says, adding “With the closure of many courts and fewer resources for the family justice system more broadly, it is inevitable that there will be an impact in one form or another.”
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