Time for no-fault divorce, says judge Sir Nicholas Wall
- 27 March 2012
- From the section UK
Couples should be allowed to divorce without having to blame one or the other, the most senior family law judge in England and Wales has said.
Sir Nicholas Wall, president of the High Court's Family Division, said he could "see no good arguments against no-fault divorce".
Society no longer sees divorce as shameful, so there is no need for one partner to be deemed innocent, he said.
A change in the law was mooted in 1996, but scrapped before it was implemented.
In aspeechto family lawyers, Sir Nicholas said: "I am a strong believer in marriage.
"But I see no good arguments against no-fault divorce.
"At the moment, as it seems to me we have a system - so far as divorce itself is concerned - which is in fact administrative, but which masquerades as judicial."
He said this had its roots in history.
"In the 19th Century and for much of the 20th, divorce was a matter of social status - it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the 'innocent party'.
"All that, I think, has gone."
Under current divorce law in England and Wales, a person has to prove in court that the marriage has broken down.
It can have broken down for only five reasons - adultery, unreasonable behaviour, desertion after two years, two years' separation with consent or five years' separation without consent - and these are included in a divorce petition when it is filed to a court.
If the grounds are agreed, and the court sees no reason why there cannot be a divorce, a decree nisi document is drawn up.
A decree absolute is then issued, legally ending the marriage.
Sir Nicholas was on the Whitehall advisory group recommending no-fault divorces in the Family Law Act 1996.
But opponents said it allowed couples to break up too easily, and the plans were scrapped by Tony Blair's Labour government.
The judge made the speech at the annual conference of Resolution - a group of lawyers promoting non-confrontational resolutions to family problems - held in Leeds at the weekend.
Campaign group Fathers 4 Justice agreed with Sir Nicholas - with some reservations.
Campaign director Nadine O'Connor said: "Where children are involved, I would not like to see a fast-track option, because there is a need to consider the rights and responsibilities to children. Where there are no children, a no-fault divorce is a sensible option to have.
"Where children are involved, there are other implications that come into play. But in the majority of cases, people do not sit around a dinner table and compare notes on why they got divorced. There is definitely room for no-fault divorce. Going to the courts should really be a last resort.
"This is where relationship has broken down, it's not a criminal matter, it's a couple that has simply fallen out of love."
A Ministry of Justice spokesperson said: "The government currently has no plans to change the grounds for divorce or any of the reasons used to support irretrievable breakdown of marriage."