This Commons Library briefing paper considers the current basis for divorce and arguments for and against the introduction of "no-fault" divorce.Jump to full report >>
Parts 1 to 4 of this briefing paper deal with the position in England and Wales.
The only ground for divorce is that the marriage has irretrievably broken down. The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent.
Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. In 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. The relevant provisions in Part 2 have now been repealed.
Among others, some senior members of the Judiciary; the Family Mediation Taskforce; and Resolution have called for the introduction of no‑fault divorce.
In 2015, Richard Bacon introduced a ten minute rule Bill which aimed to allow no-fault divorce. The Bill did not proceed any further.
Advocates of this form of divorce speak of reducing the conflict which can be caused by allegations of fault. In some cases, the assertion of fault is considered to be a “charade”.
In a Court of Appeal decision in March 2017, Sir James Munby, President of the Family Division, spoke of an aspect of the law and procedures being based on “hypocrisy and lack of intellectual honesty”.
The arguments of those who oppose the introduction of no-fault divorce include that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown.
The Government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.
With some exceptions (such as if there is evidence of domestic violence), there is now a general requirement for couples to attend a Mediation Information Assessment Meeting (MIAM) before issuing certain applications to court in a divorce case. The purpose of the MIAM is for the couple to find out about and consider mediation, or other forms of non‑court based dispute resolution.
Part 5 of this briefing paper deals with the position in Scotland.
The basis for divorce under the Divorce (Scotland) Act 1976 was originally very similar to that in England and Wales. The irretrievable breakdown of marriage had to be evidenced by one of five facts, including two years separation with consent and five years separation without consent. However, the Family Law (Scotland) Act 2006 reduced the separation periods from two years to one where there is consent, and from five to two years where the respondent does not consent. The ‘desertion’ fact was also removed.
A simplified (do it yourself) divorce procedure may be used with the no‑fault facts (there are also other qualifying criteria). This is now the most frequently used procedure.
Commons Briefing papers SN01409
Author: Catherine Fairbairn