Out-Law / Your Daily Need-To-Know

Senior judge renews calls for introduction of 'no fault' divorce in England and Wales

Out-Law News | 10 Apr 2015 | 8:57 am | 2 min. read

Laws governing divorce in England and Wales should be modernised to allow couples to divorce without accusing their ex of adultery or 'unreasonable behaviour', according to one of the country's most senior judges.

In an interview with the Times (registration required), Baroness Hale of Richmond said that the current rules created unnecessary "acrimony" between divorcing couples, particularly those who wanted to divorce quickly. Currently, divorces in England and Wales may only be granted on one of five grounds: adultery; unreasonable behaviour; desertion for two years or more; two years' separation with the other party's consent; or five years' separation without the other party's consent.

Kate Francis of Pinsent Masons, the law firm behind Out-Law.com, who is an expert in matrimonial disputes involving high net worth individuals (HNWIs), said that changing the rules would enable divorce law to more closely reflect the often complex reasons behind the breakdown of relationships.

"The idea of 'fault' is a hangover from the past and only serves to heap fuel onto the emotional pyre when couples, who are already going through a difficult period in their lives, are encouraged to play the blame game," she said. "As the reason for the divorce almost never has an impact on how the finances should be split between a couple, it seems a particularly pointless exercise."

"At the moment, divorce petitions are structured so as to put all of the blame on one party and the other is entirely absolved. The reality is almost always a lot more complex than that," she said.

As deputy president of the Supreme Court, Baroness Hale is the UK's most senior female judge. She first proposed the introduction of a 'no fault' style of divorce, with a one-year 'cooling off' period during which couples would be expected to sort out financial and childcare arrangements, about 20 years ago. However, the plans were rejected by Conservative MPs.

In an interview with the Evening Standard at the end of 2014, Baroness Hale said that that a new ground for divorce would save couples from "producing a list of the other person's failings" as part of the process. She anticipated that couples would be able to "make a declaration that [their] marriage had irretrievably broken down and if [they] were still of that view a year later, then [they] get [their] divorce" under the proposed new system.

The Law Commission, which makes proposals for law reform in England and Wales, recently reviewed the rules governing the division of property when married couples or civil partners separate. It has proposed the introduction of 'qualifying nuptial agreements', enforceable by the courts, which would allow couples to decide how their assets should be shared if they were to go on to separate.

However, in her Times interview, Baroness Hale said that courts should be able to retain their existing power to amend prenuptial agreements even if the Law Commission's proposals were enacted.

"I am not against prenuptial agreements as such but what I wish everyone would understand is that the purpose of a pre-nuptial agreement in most cases is to provide that somebody will get less than otherwise they would be entitled to," she told the newspaper.