Why our divorce laws need to be reformed

The Nuffield Foundation recently released a report entitled ‘Finding Fault’ in which it condemned the prevailing divorce laws in England and Wales, accusing them of forcing couples to make exaggerated and even false claims of adultery or bad behaviour, to obtain a divorce.

Under the Matrimonial Causes Act 1973, the only grounds for divorce in England and Wales is that the marriage has irretrievably broken down, and to prove that, the spouse bringing the divorce petition must cite one of five reasons. Three of these – adultery, behaviour and desertion – are based on fault. To avoid the need to resort to fault and blame, couples must wait two years, or if one of them disagrees with the divorce, five years.

In England and Wales, sixty per cent of divorces are based on fault, whilst in other countries, the need to cite fault has largely been abolished. Having to make these allegations has long been viewed as unnecessarily stressful and damaging to children, and a source of additional friction and discord between the divorcing couple.

Back in 1990, a Law Commission report set out what it saw as the key problems with fault-based divorce, including that the law was confusing, misleading, discriminatory and unjust, distorted bargaining positions, provoked unnecessary hostility, and did nothing to save marriages. As a result, parliament passed the Family Law Act 1996, however, it failed to go ahead as it was removed by the coalition government.

A campaign for change

Now, senior figures from the judiciary are calling for the reform of what they see as the unjust and outdated divorce laws in England and Wales. The reforms they would like to see include:

• the abolition of the need in divorce proceedings to allege fault or blame
• the end of the so-called ‘meal ticket for life’ maintenance awards
• statutory backing for prenuptial agreements.

There have also been widespread calls for the introduction of civil partnerships for heterosexual couples. Supporters of the idea believe it would represent a better option for people who don’t hold religious views, but would like to make a legally-recognised commitment to their partner. With many more couples choosing cohabitation, offering an alternative form of contract could provide a welcome and more secure arrangement that better protects the interest of both parties.

Joyti Henchie, Partner and Head of Family Law, comments: “At present, the law forces divorcing couples either to prove adultery, be separated for at least two years, or blame the other party and prove that their behaviour led to the breakdown of the marriage. However, in many instances, both parties mutually agree that the marriage isn’t working, so being forced down this path causes unnecessary hostility and distress between them. Although archaic, the current law is clearly designed to make divorce difficult, and to preserve the sanctity of marriage. Laudable sentiments unless you are deeply unhappy”.