No fault divorce - Why lawyers like me hope new law can end the bitter blame game: Adrian Clossick

As a divorce lawyer, it is important to remember that you are the ultimate distress purchase.

No-one starts their marriage thinking it will end in divorce. If the sad day does come when a marriage fails, emotions can run high. Parties can be quick to blame each other for the breakdown.

They may think that in placing the blame at the door of the other spouse, they may achieve a better financial outcome, or more time with the kids.

You may think “so far, so good” for divorce lawyers. Surely they will benefit from a “War of the Roses” style divorce battle with each party playing the blame game? After all, we all know the good Yorkshire saying: “Where there’s muck, there’s brass”.

However, the reality is somewhat different. This month saw the Divorce, Dissolution and Separation Bill conclude its route through the House of Commons and shortly it will receive Royal Assent.

This bill introduces the concept of ’No-Fault’ divorce into the law of England and Wales, with the law likely to be implemented towards the end of 2021 or early 2022.

This is a change in the law that has been supported by the vast majority of divorce lawyers, this writer included. Resolution, the leading family law body in England and Wales representing 6,500 family justice professionals, reported the proposed update in the law was supported by 90 per cent of its members. This may lead some to ask, won’t divorce lawyers lose their jobs – is it a case of turkeys voting for Christmas?

Far from it. As a distress purchase, the real job of a divorce lawyer is to enable parties to navigate through the divorce process towards a fair outcome as quickly and easily as possible.

There is a skill in not getting caught up in the emotion. The goal is to minimise the opportunity for conflict, rather than exacerbating it, and to focus on the key issues that may make a difference.

In the vast majority of cases, the reason for the breakdown of the marriage, and who did what to whom, will not affect the overall outcome of financial or children matters. When it comes to questions regarding children, the law will focus purely on what is in their best interests. On the financial side of things, the court will only look to each party’s conduct in exceptional cases where that behaviour is gross and obvious, which is a very high hurdle to overcome.

Being drawn into the blame game can therefore be counterproductive. In many cases, it will render settlement less likely and serve no purpose other than to potentially permanently undermine the relationship between the parties, who may have a lifetime of co-parenting ahead of them.

It is for that reason that there have long been calls for the law to be changed. The current law forces those whose marriage is over to blame the other for the breakdown if they are not prepared to wait for a minimum of two years after separation to divorce. If the other spouse does not agree to the divorce, that period is extended to five years.

Very few clients wish to wait that long. They therefore find themselves having to blame the other party’s adultery or unreasonable behaviour to obtain an immediate divorce, whether or not that reflects the reality of the reasons for their separation. This can polarise positions and amp up emotions.

It can also undermine attempts to reach an agreement outside of the court process, for example, through mediation. It is this that led one the country’s leading family law judges, Sir James Munby, to identify this area of the law as being based on “hypocrisy and lack of intellectual honesty”.

The change in the law has therefore been supported by the majority of divorce lawyers as bringing divorce law into the 21st century. Removing the need to blame the other spouse for the breakdown of the marriage will hopefully result in a more dignified process for all concerned and enable divorcing spouses to focus on resolving the real issues between them.

In short, the change should make the divorce process kinder.

This is far from being a case of turkeys voting for Christmas. Divorce lawyers will continue to play a key role in facilitating divorce settlements and enabling clients to see both the wood and the trees. There will now be one less distraction along the route to settlement.

After nigh on 30 years of campaigning, it is a change in the law that is long overdue. In the words of the Lord Chancellor, Robert Buckland QC; “The institution of marriage will always be vitally important, but we must never allow a situation where our laws exacerbate conflict and harm a child’s upbringing”.

That is a statement with which I, and the vast majority of divorce lawyers, wholeheartedly agree.

Adrian Clossick is Head of Divorce and Family in the Leeds office of Stewarts.

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