By Camilla Khawaja
Much discussion has taken place of late with regard to the importance of fault in divorce law, so I ask is it still necessary to attribute blame to the other party? The party whom you once loved and maybe even still do, the party with whom you shared your hopes and dreams, your life, only for this party to become in legal speak, the respondent.
Baroness Hale of Richmond said that she wanted to see the bitterness taken out of matrimonial disputes so a person need not hold their husband/wife at fault in order to obtain a divorce. Lady Hale’s further suggestion that the children of the marriage and finances are dealt with pre decree absolute is also welcome, in my experience absolutes can be applied for in haste, matrimonial rights rendered in some cases null and void while children can be fought over like pawns in a game in the realisation that their living arrangements impact upon the financial split. The system is a flawed one; there is too much scope for manipulation by lawyers and litigants alike.
Currently, in order to divorce one party must prove one of five reasons:
- unreasonable behaviour;
- desertion for two or more years;
- two years’ separation with consent; or
- five years’ separation without consent.
The second reason – that of unreasonable behaviour – is by far the most frequently ticked box, it covers a multitude of sins, as it were, and allows for the divorce process to commence without otherwise having to wait the requisite two years with consent.
Approximately 120,000 couples divorce in England and Wales each year; those who want to divorce are required by us lawyers to list specific issues whilst attributing blame in order to achieve the same. The notorious Part 6, the recriminations, the accusations, the hurt played out again only for a perfect stranger to deem it painful enough to stamp the form allowing for the divorce to proceed is, in my humble opinion, unnecessary.
Points for consideration
Is it not sufficient that two people have come to the decision that the marriage is over. Would allowing this as a ground really undermine the sanctity or importance of marriage? I think not. Is it necessary to relive the hurtful episodes and blame him/her when all you are really trying to do is right the wrongs and start as far as possible afresh? Is the system where you must find fault and blame the other party given that you cannot even divorce on the grounds of your own behaviour not in need of reform? What about the cases where the couple have simply grown apart, the humdrum of domesticity has perhaps seen its day, is this really anyone’s fault? And even if it is, does it have a role to play in today’s divorce courts?