07 Apr Divorce: Still a place for fault?
This week saw the introduction of one of the biggest reforms to divorce law in England and Wales in over fifty years. As of 6th April, separated couples now have the ability to apply for a “no-fault” divorce, without having to play the blame game. We looked at that in our earlier blog ‘Divorce: Whose Fault?’
So what is a no-fault divorce?
The new law means that for couples in England and Wales wishing to divorce, they no longer have to blame the other (using the grounds of adultery, behavior or desertion), or wait 2 years (if the other spouse consents to the divorce) or five years (where their spouse does not consent) . One spouse can apply or the couple can apply jointly. All that is required is a statement to confirm that the marriage has broken down.
The whole process has also been shortened with it only taking six months from applying for divorce to having it granted. Which is considerably shorter than having to wait the two or five year minimum period.
The new changes in England & Wales have been welcomed by many, including separated couples and those working in the field of family law. Clearly, by removing the need to find fault, it can reduce conflict and allow families to move on in a more amicable and positive way.
The position north of the border
In Scotland, the divorce laws were reformed back in 2006. At that time, the no-fault separation divorce periods were reduced from two years (with consent) and five years (without consent) to one and two years respectively. This was considered a major improvement to Scottish divorce law.
A fault based divorce is still possible in Scotland where the grounds of unreasonable behaviour or adultery can be established. Whilst we would generally encourage most clients to avoid pursuing a divorce under those grounds, there will inevitably be some situations where this route is necessary.
It is worth pointing out that even if a party is found to be “at fault” it will not impact the financial award at all and generally will not be taken into account when deciding the care arrangements for the children.
So if pointing the finger won’t get you more money, why bother?
There may be tactical reasons to apply for a divorce as quickly as possible and not wait out the one or two year period. If one party is keen to negotiate a financial settlement and the other party refuses to engage, then it can be useful to apply for a divorce on one of the fault grounds –if applicable. As you can apply immediately and don’t need to wait. The ground of divorce then “opens the door” to enable the person to make other financial claims, such as seeking a transfer of the house, a capital sum or claim for spousal aliment.
We also can’t ignore the emotional impact that a person’s behavior will inevitably have had on their spouse. Whilst arguably every spouse will have their own flaws in any marriage, if one person has been blatantly at fault and for example had quite a public affair, it is only human nature for the wronged spouse to want to apply for a divorce on the grounds of that adultery. And why shouldn’t they? Especially if there are no children involved. Many in that situation feel quite cathartic and a sense of natural justice at being able to do so.
What about a spouse who has been in an abusive relationships for years? If they finally find the courage to leave, why should they have to wait for one/two years to apply for a divorce? Their abusive spouse is very likely to withhold their consent, simply as another way to control them. Should they have to remain married to their abuser for two years? What impact could that have on them emotionally?
Still a place for fault?
Whilst we will generally encourage clients to try to reach an amicable settlement firstly, then apply for a divorce using one of the no-fault grounds, we do appreciate that that approach will not be suitable for everyone. It may be that applying for a fault-based divorce is more appropriate. We will always explain the different approaches available and help our clients to pick the one that is right for them and their family.