Is Fault Based Divorce Fair?

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The UK's most senior female judge, Baroness Hale, has called for an overhaul of divorce laws to see allegations of blame and adultery removed.Divorce Blame CultureBaroness Hale suggested that the law should be revised so that couples would be able to declare their marriage had irretrievably broken down, and then have a one year 'cooling off period' where the couple would need to manage their arrangements.

Does a fault based divorce system protect the importance of marriage, or does it simply make divorce more difficult and upsetting for those involved? We asked our experienced family law team what they thought.

Carol Chrisfield

Carol Chrisfield, Family Law Solicitor

Carol, who is based in our Bristol office, is a member of the family law solicitors association Resolution.

"It is sad that parties are still required in many cases to attribute blame for the breakdown of the relationship. Needing to place blame can make resolving financial and children issues far more difficult, with the allegations causing tension and hurt from the start."

"As far as a cooling off period is concerned, I am not convinced this is necessary. Although the media often seem to present the idea that husbands and wives come to quick decisions to divorce, this is in my experience never the case."

"When clients visit me for the first time they often explain that there have been difficulties in their marriage spanning years. It is not uncommon for them to seek advice, but not actually instruct me in relation to a divorce for some months or even years later."

Emma Pearmaine

Emma Pearmaine, Director of Family Services

Emma, who is based in our Leeds office is a member of the Law Society's Family Law and Family Law Advanced, as well as Resolution.

"We represent many divorcing clients who find themselves issuing divorce proceedings on the grounds of adultery or unreasonable behaviour simply because they can’t wait the two years to divorce on the grounds of two years separation."

"Whilst they are not misrepresenting their reasons for wanting to divorce, and the breakdown of the relationship may actually have been because of those reasons, they express deep distress at reliving it and having to put it all down on paper. It does genuinely increase animosity in circumstances where couples would generally prefer to put their troubles behind them and move on positively, with an amicable divorce without citing any fault, for the benefit of their family."

Jenine Abdo

Jenine Abdo, Family Law Solicitor

Jenine, based in our Cardiff office, is a member of Resolution and the Association of Lawyers. Jenine works locally with the Communities First advice clinic in Cardiff Bay, and a National Women's and Domestic Violence agency in Cardiff.

"Divorce is a highly emotional and mentally draining time. Many who instruct are nervous about the process and do not want matters to spiral out of control, especially in cases where there is no fault and no blame. Some people seek a divorce, perhaps they are no longer in love or their relationship has just not worked out. It is very difficult to advise clients in this situation that they have to rely on a fault based ground like 'unreasonable behaviour', or else face another two years separated but still married."

"This as a consequence leads to matters between parties becoming fraught instead of remaining amicable, which in turn causes further distress to an already unpleasant situation. Having a no fault divorce can help alleviate these pressures and allow divorcing couples a more balanced footing within the proceedings."

Time for Change?

With a change of government on the horizon, and pressure coming from organisations such as National Family Mediation and Resolution, we may hopefully be seeing a reform of the current fault based divorce system.


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