With divorce enquiries reportedly at a 10-year high, pressure is growing from family law professionals – led by family law solicitors’ association Resolution – for reform of the existing ‘fault-based’ system to enable spouses to divorce within a matter of months, without the need to attribute blame.

Under current law, the single ground for divorce is the irretrievable breakdown of a marriage but, for this to be established, there must be reliance by the petitioner on one of the following five facts:For people who have separated from their spouse and have decided that their marriage is at an end the choice is simple. They can:

  • blame their spouse for the breakdown of the marriage (by filing a petition based on their spouse’s adultery or behaviour);
  • wait for two years to elapse and then proceed with the agreement of their spouse; or
  • wait for five years and then proceed with or without their spouse’s agreement.
Many argue that the two- and five-year timeframes correctly safeguard against it being too easy for couples who have simply drifted apart to get divorced, thus protecting the institution of marriage which would be undermined if ‘quickie’ divorces were possible.

  • their spouse has committed adultery;
  • their spouse has behaved in such a way they can no longer be expected to live with them;
  • they have been abandoned;
  • there has been two years’ separation and it is agreed that there should be a divorce; and
  • there has been five years’ separation.

It would appear, however, that this view is not shared by most family law professionals.Of fundamental concern is the issue of whether it is right, in today’s world, to force people who have separated to remain married beyond any short ‘cooling-off’ period. With the possibility of tax advantages for married couples presently under discussion in political circles, the issue of the ‘nanny state’ is under the spotlight.

Moreover, the current law results in large numbers of people choosing to file fault-based petitions rather than wait for two years, even though they would rather not have to apportion any blame for the breakdown of their marriage. Doing so risks either raising the level of tension in already difficult circumstances, or introducing an element of tension which has not previously existed.

Most family lawyers will try to draft petitions in such a way that they are as unlikely to offend as reasonably possible (while still being sufficiently strong in content to satisfy a court of their client’s entitlement to a divorce). Resolution members will, in accordance with their code of conduct, generally look to agree a draft petition before it is filed, but the question remains whether all of this should really be necessary.

The tension that flows from the formal introduction of an element of fault often makes other issues flowing from the breakdown of the marriage – such as issues relating to finances and children – more difficult or even impossible to resolve without the assistance of the court and, in extreme cases, can lead to expensive and acrimonious, contested divorce proceedings. The parties suffer unnecessarily as a result, and so too, almost inevitably, do those around them, such as any children whose welfare should be at the forefront of everybody’s mind.

With the law relating both to financial and children issues clearly designed to promote a constructive approach to the resolution of differences, the fault-based divorce system is unnecessarily confrontational and out of step. The time has come for reform and it will be interesting to see what approach the government will take following the general election. It is far from clear whether reform will be forthcoming. The present Labour government has moved away from the reforms advocated by John Major in the mid-1990s, and, while the Conservative party has issued mixed messages, it has traditionally placed great emphasis on the importance of protecting the institution of marriage as being central to stable family life.

Edward Heaton is a senior solicitor at Mills & Reeve LLP