Forcing blame on separating couples has a negative impact on the whole family process of ending a marriage 

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Andrew Balfour

Research published by the Nuffield Foundation in October this year shows what practitioners working with individuals and couples have long known to be the case: our divorce laws are out of date and incompatible with a modern family justice system which seeks to reduce conflict between couples who are divorcing; not amplify this – as the current law does. 

Current divorce law, which dates from 1969, requires that the applicant for the divorce must satisfy the court that their marriage to their partner has broken down irretrievably (the one and only ground for divorce under the law); this breakdown must be substantiated by one or more of five "facts" being established by the State: (a) adultery by the other person; (b) that the other person has behaved in such a way that the applicant cannot reasonably be expected to live with them; (c) desertion by the other person, for at least 2 years; (d) with the consent of both parties, after 2 years of separation; (e) five years of separation (no consent needed).

The current law means that one person has to blame the other if they do not wish to wait at least two years – two years in which both parties lives’ are effectively put on hold, in that, for example, they cannot remarry and financial arrangements between the couple seeking to divorce will remain entangled. For people who are parents this period can represent a very significant portion of their children’s lives. It is also worth noting that it is not simply the act of divorce that harms children but the conflict that leads up it and how parents manage their co-parenting relationship afterwards. Agreed arrangements, through no fault divorce, are likely to improve shared decision making and create more stable and less conflictual parenting of children after divorce.   

It is very seldom true of course that any relationship breaks down because of one person's behaviour, although this is what a divorce petition will state. At Tavistock Relationships we see, day in and day out, the consequences of the current system which effectively encourages one partner to blame the other in order to expedite divorce.

Such a mechanism is surely insupportable given the firmly established evidence showing that conflict between parents that is frequent, intense and unresolved is not only damaging to the mental and physical health of the couple, but also has long term negative impacts on children’s outcomes, including their mental and physical health, cognitive and emotional development. (Early Intervention Foundation, Harold et al. What Works To Enhance Inter-parental Relationships And Improve Outcomes For Children? 2016 

On this basis, therefore, we are lending our support to the main the proposal made in the Nuffield Foundation’s new report, "Finding Fault? Divorce Law and Practice in England and Wales", that divorce should be available if one or both of the couple register that their marriage has broken down irretrievably and that intention is confirmed by one or both after a minimum period of at least six months. Such a reform of the current laws will ensure that we have divorce not on demand, nor by default, but divorce without making up evidence or unnecessarily hurting the other.

With contributions from:

Hazel Wright

Honor Rhodes