Two people married for love. They had children. The pressure of life/work, financial pressure, emotional pressure, the pressure at work took their toll on both spouses. They grew apart. They found they had different interests. They irritated each other. The romance had gone. They both fell out of love. Who is to blame? and why does it matter?
Unless you have lived separately for more than two years, or your spouse deserted you for more than five years divorce in England and Wales must be based on an irretrievable breakdown of marriage on the basis of adultery or unreasonable behaviour. There does, however, need to be blamed on the part of the responding spouse, and the blame/fault needs to be acknowledged and accepted by the respondent.
Therein lies the problem for a number of reasons, and I set out a non-exhaustive list below:
- Let us say you have acted reasonably, but your spouse has acted unreasonably. You cannot compel the one who had acted unreasonably to divorce you. That was effectively the position in the recent case of Owens v Owens and seeks to highlight even more so why there should be a no-fault divorce.
- A loveless marriage where both are unhappy for a mixture of reasons, should not be about blame, but rather an acceptance that they each tried to reconcile/work at their marriage and both accept that their marriage has irretrievably down. If there are children involved, the focus must be on building a different kind of relationship moving forwards where each of the parents is involved without denigration on a positive platform in the best interests of the children. How does divorce based on blame, assist reconstructing bridges for the sake of the children moving forwards? It cannot do so.
- Hubris and ego take over on occasion when someone who feels they have done no wrong, is suddenly blamed. Finding a need to blame one or the other is a recipe for contention and dispute. A constructive exit to a marriage, should not be hampered by the additional emotion of seeking blame. Mutual respect and understanding and acceptance that things did not work out, should be the focus, rather a reason to blame anyone for anything.
I am encouraged by Nigel Shepherd’s speech at the 29th National Conference 2017 for Resolution, that it was a personal mission of his to see ‘No fault divorce’ become a reality.
The current system encourages ‘conflict and blame’ and fault-based divorce should be ‘consigned to the history books’. I totally agree and support Nigel’s mission.
Here I am seeking to deal with divorces in an amicable manner (they don’t always go that way), and the first thing I have to do is to write to the proposed respondent spouse to explain to him/her why their marriage has broken down and why it is their fault. I seek to find anodyne rather than acidic or vitriolic reasons, but even anodyne reasons to someone who either does not accept them or does not consider their marriage is over will seek to obstruct/fight/delay the inevitable divorce.
Worse still, those grounds of unreasonable behaviour can be rejected by the court, even if accepted by the respondent, as not unreasonable enough.
According to Nigel Shepherd, he gives statistics from Resolution that more than 110,000 people divorce each year. 300 couples get divorced each day.
Reform of the law is long overdue for no fault divorce.
This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is a strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.