Currently, getting divorced is almost totally focused upon the ‘blame game’. For that reason many legal professionals feel that current divorce law is out of date. The law requires the Petitioner to prove that the marriage has ‘irretrievably broken down’, but this is mainly done by citing fault-based concepts (‘facts’), such as ‘unreasonable behaviour’ or ‘adultery’ or ‘desertion’ or ‘five years separation’. The one ‘fact’ which looks away from fault, is ‘two years separation with consent’. The problem with the ‘blame game’ approach is that it almost inevitably invites conflict, during what is already an emotional time.
Put another way, one or possibly both parties, rightly or wrongly, will have in contemplation, who was to ‘blame’ for the divorce and consider this to be a relevant factor, when it comes to the division of the matrimonial assets. However ‘conduct’ is only one of the factors which the Court may have regard to when deciding what is a ‘fair’ division of matrimonial property or matrimonial assets. In reality any conduct apart from extremely severe financial misconduct, or financial abuse, or abusive conduct which hugely and adversely impacts upon the matrimonial estate, in some way, is not likely to be determinative to how the matrimonial assets are divided. For example starting an affair with the next door neighbour is not likely to be a factor that the Court will have regard to when making a financial remedy order. Such conduct however, may obviously serve as an example of unreasonable behaviour, and also it may be used to prove any alleged adultery.
The Law Society supports the Divorce, Dissolution and Separation Bill which is currently going through Parliament. The Bill seeks to introduce a no-fault divorce system, which will reduce conflict and allow couples to focus on important issues such as their children, financial matters and property. The Bill will replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown, and also remove the possibility of contesting the divorce. It will also introduce an option for a joint application, thereby focusing on the fact that both parties agree that the marriage is at an end, rather than requiring one party to prove that it has. Also, age-old and anachronistic Latinisms such as ‘decree nisi’ and ‘decree absolute’ will be replaced with the plain English translations.
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