'Stop playing the blame game'. It is one of the worst
kept secrets to a 'good marriage'. Could it also be the key
to a 'good divorce'?
Today marks the beginning of Resolution's 'Good Divorce
Week', a campaign to cast the spotlight on various initiatives
and proposals to promote a non-confrontational approach to
Families who have experienced an acrimonious divorce first hand
may dismiss the concept of a 'good divorce' as illusory.
Others whose thoughts immediately turn to similar sentiments of
'consciously uncoupling' and 'happily even after'
would also be forgiven for any initial scepticism. However, the
campaign contains a number of legislative and practical
recommendations which, if adopted by Government and/or embraced by
our profession, have the ability to improve the experiences of
couples and children affected by divorce.
Key among these is a renewed call for the introduction of the
so-called 'no fault divorce'. Since 1995, successive
Governments have considered and dismissed draft legislation to
supplement or substitute our current laws. The upshot of the
current system is that where one or both parties to a marriage are
unwilling to wait two years from the date of separation to commence
divorce proceedings, one of them will invariably have to prove that
there has been adultery or else put forward allegations of
unreasonable behaviour before they can issue the petition. The
circumstances surrounding the drafting and issue of the petition
can often set the tone for the divorce and financial proceedings
that follow. The requirement for one party to, at the outset,
reflect and articulate why the other is to 'blame' for the
breakdown of the marriage rarely assists couples who would
otherwise look to conduct matters as cordially as possible.
In any marriage, there will have been some form of
'unreasonable behaviour' and the reality is that any
petitioner can formulate examples of their spouse's behaviour
to prove irretrievable breakdown; the threshold is low. However,
this prompts the question – why, if the threshold is so low,
should couples who want to divorce be forced to attribute any kind
of blame to the other if they do not want remain married for two
years following separation?
Research carried out by YouGov for Resolution, published last
year found that 27% of people who issued so-called
'fault-based' petitions admitted the allegation of fault
wasn't true, but was the easiest option. The introduction of
the 'no-fault' divorce would save so many couples from
going through this blame charade in order to move on with their
My colleague Will has written previously about many of the
advantages to introducing no-fault legislation for couples,
children and the courts alike (read more here http://www.withersworldwide.com/blog/time-for-no-fault-divorce/).
At the time of his writing, a No Fault Divorce Bill introduced by
Richard Bacon MP was due before Parliament for its second reading.
The Bill proposed that couples should have the option to declare
jointly that their marriage had broken down irretrievably, without
either party being required to satisfy the Court of any other facts
– although the existing five facts (adultery, unreasonable
behaviour, two years' separation with consent, five years'
separation without consent and desertion) should also be retained
as alternatives. The only other provision in his Bill was a
cooling-off period of one year before a decree of divorce could be
made absolute, so that couples would have time to reflect on
whether a divorce was really what they wanted.
Put simply, the Bill, if introduced, would have meant that those
couples who wished to avoid apportioning blame in a divorce could
have done so. Unfortunately, the Bill did not make it to the second
reading, not least because there remains a strong contingent of MPs
who believe 'no-fault' divorce would devalue the
institution of marriage. Resultantly, the 'blame game'
continues, with negative consequences for couples who, but for
having to revisit the breakdown of their relationship and attribute
blame for it, could be focused on dealing with financial matters
and future arrangements regarding their children in a constructive
and dignified manner.
Resolution's decision to cast a spotlight on the
'no-fault' divorce as part of Good Divorce Week could not
come at a better time if we, not only as a profession, but also as
a society, are to reinvigorate the momentum generated by Richard
Bacon's Bill. The campaign coincides with the publication this
month of a briefing paper by the House of Commons on the history of
'no-fault' divorce proposals with the result that
Parliament could not be better placed to get properly informed and
finally put an end to the 'blame game'.
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While a request for a divorce may come as a shock, most people come to the realisation that if their spouse considers that the marriage is over then, perhaps after attending marriage counselling, there is no point fighting the inevitable.
There is no question that Mr and Mrs Owens are both unhappy with their current position, and the Court of Appeal judges were equally unhappy with the current legal position. The question is what should be done.
The highly unusual decision in the recent case of Owens v Owens, has served as a reminder of the Respondent's right to defend a Petition for divorce, and the Court's power to reject a Petition based on unreasonable behaviour...
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