28 November 2016

Putting paid to the blame game

Sarfraz Ali
Associate | UK

‘Stop playing the blame game’. It is one of the worst kept secrets to a ‘good marriage’. Could it also be the key to a ‘good divorce’?

As this blog is posted, we are marking the beginning of Resolution’s ‘Good Divorce Week’, a campaign to cast the spotlight on various initiatives and proposals to promote a non-confrontational approach to separation.

Families who have experienced an acrimonious divorce first hand may dismiss the concept of a ‘good divorce’ as illusory. Others whose thoughts immediately turn to similar sentiments of ‘consciously uncoupling’ and ‘happily even after’ would also be forgiven for any initial scepticism. However, the campaign contains a number of legislative and practical recommendations which, if adopted by Government and/or embraced by our profession, have the ability to improve the experiences of couples and children affected by divorce.

Key among these is a renewed call for the introduction of the so-called ‘no fault divorce’. Since 1995, successive Governments have considered and dismissed draft legislation to supplement or substitute our current laws. The upshot of the current system is that where one or both parties to a marriage are unwilling to wait two years from the date of separation to commence divorce proceedings, one of them will invariably have to prove that there has been adultery or else put forward allegations of unreasonable behavior before they can issue the petition. The circumstances surrounding the drafting and issue of the petition can often set the tone for the divorce and financial proceedings that follow. The requirement for one party to, at the outset, reflect and articulate why the other is to ‘blame’ for the breakdown of the marriage rarely assists couples who would otherwise look to conduct matters as cordially as possible.

In any marriage, there will have been some form of ‘unreasonable behavior’ and the reality is that any petitioner can formulate examples of their spouse’s behavior to prove irretrievable breakdown; the threshold is low. However, this prompts the question – why, if the threshold is so low, should couples who want to divorce be forced to attribute any kind of blame to the other if they do not want remain married for two years following separation?

Research carried out by YouGov for Resolution, published last year found that 27% of people who issued so-called ‘fault-based’ petitions admitted the allegation of fault wasn’t true, but was the easiest option. The introduction of the ‘no-fault’ divorce would save so many couples from going through this blame charade in order to move on with their lives.

My colleague Will has written previously about many of the advantages to introducing no-fault legislation for couples, children and the courts alike (read more here). At the time of his writing, a No Fault Divorce Bill introduced by Richard Bacon MP was due before Parliament for its second reading. The Bill proposed that couples should have the option to declare jointly that their marriage had broken down irretrievably, without either party being required to satisfy the Court of any other facts – although the existing five facts (adultery, unreasonable behavior, two years’ separation with consent, five years’ separation without consent and desertion) should also be retained as alternatives. The only other provision in his Bill was a cooling-off period of one year before a decree of divorce could be made absolute, so that couples would have time to reflect on whether a divorce was really what they wanted.

Put simply, the Bill, if introduced, would have meant that those couples who wished to avoid apportioning blame in a divorce could have done so. Unfortunately, the Bill did not make it to the second reading, not least because there remains a strong contingent of MPs who believe ‘no-fault’ divorce would devalue the institution of marriage. Resultantly, the ‘blame game’ continues, with negative consequences for couples who, but for having to revisit the breakdown of their relationship and attribute blame for it, could be focused on dealing with financial matters and future arrangements regarding their children in a constructive and dignified manner.

Resolution’s decision to cast a spotlight on the ‘no-fault’ divorce as part of Good Divorce Week could not come at a better time if we, not only as a profession, but also as a society, are to reinvigorate the momentum generated by Richard Bacon’s Bill. The campaign coincides with the publication this month of a briefing paper by the House of Commons on the history of ‘no-fault’ divorce proposals with the result that Parliament could not be better placed to get properly informed and finally put an end to the ‘blame

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