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|29 March 2017
Is the concept of 'no fault divorce' on the cards?
There has been a lot of media coverage lately regarding “activists” who are seeking reform of the current divorce laws in the UK (and in Jersey) to include a “no fault” way of bringing about a divorce. A march was recently held in the streets of London in support of this reform.
The UK government is in the process of reviewing a number of changes to the matrimonial causes laws: this will include a decision on whether a no-fault divorce system should be rolled out in the UK. Jersey will watch this development with interest as it decides how best to overhaul its own matrimonial statue as well.
However, the UK government has recently indicated that it does not intend to reform the divorce laws, despite a recent You Gov poll suggesting that 69% of those taking the poll were in favour of no fault divorce.* As such the UK does not appear to have an appetite for introducing no fault divorce (see written response of Lord Keen of Elie, Ministry of Justice spokesperson in the House of Lords, written answer of 13 February 2017).
What is no fault divorce?
As it sounds, no fault divorce is where neither party can be blamed for the breakdown of the marriage. At present, Jersey provides the ability for one spouse to bring a divorce on fault-based grounds such as adultery and unreasonable behaviour. In these cases, the respondent is seen as the wrongdoer and responsible for the marriage breakdown. Divorces are often not as clear cut as only one party being responsible. There are usually two sides to every story. However, the purpose of a no fault divorce is to recognise that in some instances, the parties simply drift apart or “fall out of love”. In other jurisdictions, terms such as “irreconcilable differences” or “irreparable breakdown of the marriage” are used.
Jersey does have a form of no fault divorce in that spouses can get divorced on the basis that they have been separated for a period of one year and the other party consents or they have been separated for two years (regardless if the other consents). There is still a “petitioner” and a “respondent” but neither party is blamed for the breakdown of the marriage. The difference between this ground of divorce and a strict no fault divorce is that a period of a year has to have elapsed before filing the divorce petition. This can lead to some difficulties for couples who wish to deal with their finances and move on with their lives prior to the one or two year time bar.
A ‘pure’ no fault divorce system would not require a period of separation; just consent from both parties for the divorce to go ahead or, as is the case in certain states in America, in the instance of a unilateral no-fault divorce, even consent is not required.
Why do we have fault based divorce?
Historically, it was only possible to obtain a divorce on the basis of one party causing the breakdown of the relationship. This was because the law makers believed in the sanctity of marriage and did not want spouses to be able to get out of a marriage unless there would be some sort of injustice brought against one of the parties. In 1979 the grounds of separation were included within our statute. During this time, the courts were much more ready to take into account the respondent’s conduct, as it pertains to the breakdown of the marriage as a matter which would affect the division of the matrimonial property. Invariably, the respondent to the petition (“wrong doer”) of a fault based divorce application would receive the lesser share of the marital assets. This was seen as an incentive to be faithful and appropriate to your spouse throughout your marriage. Society’s view today, however, appears to be much different.
What are the pros & cons of no fault divorce?
The pros include:
Less animosity between the parties – often when one party is being blamed for the breakdown of the marriage, this can lead to that party feeling aggrieved, especially if the respondent feels they have their own grounds for making the application but the petitioner got their petition in more swiftly. This can set the divorce proceedings off on a bad footing and may make settlement of the finances more fraught.
Costs – often it can be difficult to argue against an order for costs if a respondent does not defend a fault based divorce petition (bear in mind these are the costs of the divorce itself, not in relation to the financial matters). Again, if a costs order is awarded for the purposes of the divorce process, this can lead to the respondent feeling a sense of injustice if they are forced to pay the petitioner’s costs in addition to accepting the allegations in the divorce petition. In a no fault divorce application, it is usual for the parties to pay their own costs or to share equally the costs of the divorce proceedings.
It reflects modern society – it is far more common these days for people to accept that marriages can break down without either party being able to identify a single cause or culprit. The no fault divorce system recognises this shift in social acceptance.
It reflects the recent case law – historically, a respondent who was shown to have caused the breakdown in the relationship would often have been penalised in terms of the share that they would receive from the matrimonial assets. These days, the court will not take account of a person’s adultery as a reason to tip the financial scales in favour of the petitioner. Further, in only very severe circumstances will the court take account of a respondent’s unreasonable behaviour as a reason to affect a financial award. One of the original purpose of fault based divorces, has, therefore, been eroded over the years.
The cons include:
Undue pressure – there is a risk that an emotionally weaker party may be forced into agreeing to a divorce that they may not wish to enter into or that may not be in their best interests or the best interests of their children. If money is tight and lawyers cannot be afforded, then this may cause problems.
Floodgates argument – there is a risk that an “easier” way of getting divorced may open the floodgates to disgruntles spouses seeking a way out before making a concerted effort to work through the problems.
Disadvantage to non-consenting spouse in unilateral divorces - in relation to unilateral no-fault divorce, an American Family Court Judge called Randall Hekman said, “It is easier to divorce my wife of 26 years than to fire someone I hired one week ago. The person I hire has more legal clout than my wife of 26 years. That’s wrong.” It is easy to see the potential injustice caused by one party being able to opt out of a divorce at any time. There may also be problems which arise in respect of pensions whereby the ex-spouse’s rights to a share of the pension could be extinguished upon divorce. Considered thought would need to be given to this before divorce is finalised.
Sanctity of marriage – there is an argument that no-fault based divorces erode the sanctity of marriage and means that people will more easily enter into a marriage if they know they can more easily get out of it.
The quote from Judge Randall Hekman will ring true with most people. Marriage is something not to be entered into lightly. Furthermore, there should always be sufficient safeguards in place to protect against financially (or perhaps emotionally) manipulated spouses and children from being exposed. It should always be borne in mind that the breakdown of the marriage may affect not just the parties themselves but also any children of the family. The law should be robust enough to make sure that all parties’ interests can be properly protected. A no-fault divorce system would appear to be beneficial in reducing animosity between the parties (and therefore, potentially reduce costs). However, it would need to include sufficient practical safeguards in order to protect any party that may be prejudiced by the divorce.