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HOW FAULTLESS IS THE CONCEPT OF NO-FAULT DIVORCE

Unusually for an advanced western nation, the concept of no-fault divorce does not exist in UK law. It is true that 2 of the ‘grounds’ for divorce (2 year separation with both parties consenting to the divorce, and 5 year separation) do not wholly rely on the concept of  ‘fault’ from an analytical perspective, but the other 3 grounds do. Both ‘unreasonable behaviour’ and ‘adultery’ carry fault based inferences and, in intellectual terms at least, it is almost impossible to construct arguments by reference to those grounds without ascribing ‘blame’ to the other party. The same is true of the ground of ‘desertion’. Indeed as a matter of law, there is no recognition of the possibility of both parties deserting each other.

There is a legal requirement for the ‘innocent’ party to ‘prove’ the ground that they are relying on. It is this speciality that requires judicial oversight. The odd thing is that the vast majority of divorces in the UK are processed unopposed under the ‘special procedure’. Therefore in real terms the situation in the UK is akin to no-fault systems whereby parties are not pitted against each other and divorces are simply justified on the basis of an irrevocable breakdown of the relationship.

The concept of fault in the UK derives from a complex admixture of factors relating to family, society, status, legal tradition and religion. This resulted in the somewhat legalistic presumption that all divorces must have a ‘guilty’ and an ‘innocent’ party. The problem with this formulation is that it engenders a system that is at once costly, cumbersome and complex. There is growing support for no-fault divorce to be introduced in the UK, not least because it would ‘bring some intellectual honesty to the system’. The difficulty, of course, is that there is no way of knowing whether the concept of no-fault divorce would be faultless in UK society.

 

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