Jane Auty: Government forcing divorcing couples to play the blame game

To date, her application or divorce, brought about by her husband’s refusal to accept blame, has been rejected by both the High Court and the Court of Appeal, with the judge declaring her allegations to be ‘exaggerated’, with the presented ‘minor altercations of a kind to be expected in a marriage’.

At present, divorce law does not permit a couple to get a divorce without blame, unless they have been separated for at least two years. In fact, there are just five reasons recognised as grounds for divorce: adultery, unreasonable behaviour, desertion and separation, two years with consent from the other party – or five years without the need for consent.

But what option is there then, for couples – similar to Tini Owens – who disagree with regards what unreasonable behaviour looks like, simply fall out of love, find themselves incompatible or drift apart?

As a family lawyer I regularly witness the impact that divorce can have on the individuals involved. Even in the most amicable of cases it can cause heartache and emotional turmoil.

Couples are under significant pressures to sort out their financial positions, minimise the impact of separation on their children and come to terms with the ending of their marriage.The present Divorce Laws twist the knife further, forcing couples to shift the blame on each other, often exaggerating behaviour allegations in order to get a quick divorce.

A study conducted by Nuffield Foundation in 2017 revealed that 29 per cent of respondents to a fault-based divorce reported that the ‘fact’ submitted had only ‘closely matched’ the reason for the relationship breakdown.

Attributing blame can, needlessly, turn what could have been an amicable process into conflict, with both parties put in the difficult position of lying, or colluding with each other, in order to escape a marriage.

Why, in the 21st century, should couples to divorce be required to ask a court for permission when no approval is required to get married?

Momentum has been gradually building towards the introduction of no-fault divorce. In 1996 the Government tried to introduce no-fault divorce, 
but the legislation was repealed in 2001 after requirements on the parties to attend at “information meetings” to encourage reconciliation proved unworkable.

In 2015, Richard Bacon MP introduced a Private Members’ Bill proposing a no-fault divorce with a one year cooling off period, but it failed to get passed.

Perhaps the reason behind the Government’s reluctance to embrace change relates to the notion of undermining the sanctity of marriage and making it too easy to bring the relationship to an end.

However, the reality of the modern world is that couples will separate. Why then do we then need to place unnecessary hurdles in the way?

Indeed, the campaign for no-fault divorce has been strengthened by recent calls from Sir Paul Coleridge, chairman of the Marriage Foundation, and Lord Wilson of Culworth, as Supreme Court Justice.

They are the latest in a long line of senior figures who have urged the Government to introduce no-fault divorce. This is also backed by the public. A YouGov poll published in March 2017 found that 69 per cent supported the principle of removing the blame from the divorce process.

Importantly, the research showed that no-fault divorce is supported by people of all genders, age, religion and income brackets. Significantly, 69 per cent of Conservative voters and 70 per cent of Labour voters backed the changed. This may make both politicians and policy-makers take note of the views of the voting public.

It is difficult to see the justification for Government refusing to change the requirements for couples to start the process of divorce by blaming the other for the breakdown in the relationship. It is time to end this and to introduce the no-fault divorce procedure.

Jane Auty is partner and head of family law at Yorkshire-based Simpson Millar.