No fault divorce – can we learn from Australia?

Posted by Laura Bennett on
As the 2015-2016 session of Parliament has ended for summer recess, Parliament's website confirms that the 'No Fault Divorce Bill 2015-2016' will make no further progress.

There has been widespread national support for the introduction of 'no-fault divorce', particularly amongst Family lawyers who are members of Resolution. Resolution is an organisation of over 6,500 family lawyers who are committed to the constructive resolution of family disputes.

A recent news article caught my eye, which I felt highlighted the need for 'no fault divorce' in England and Wales. Jodie and Michael Fox started a company, Shoes of Prey, in Sydney in 2009, three years after they got married. Unfortunately, the Foxes marriage broke down under the strain of working and living together and they divorced in 2012. Despite the divorce, Jodie and Michael were able to continue to work together and they have continued to build their business together with their co-founder, Mr Knapp. The business has now moved its headquarters from Sydney to Los Angeles, having secured $24m of private investment funding.

The fact that Jodie and Michael Fox were able to continue to work together is testament to their own hard work and determination to ensure that their company would be a success. However, this may have been helped by the fact that Australia established the principle of no-fault divorce in 1975. In Australia, the only ground for divorce is that the parties have lived separately and apart for at least twelve months, and there is no reasonable likelihood of resuming married life. This means that rather than attributing blame to one person for the breakdown of the marriage, the couple are able to mutually agree to divorce twelve months after separation. This must help reduce acrimony at the time of the separation, which can only be a positive thing, especially where the parties are likely to have an ongoing link to each other after the divorce, for example where they have children, or, as in the case of Mr & Mrs Fox, shared business interests.

This contrasts with the position in England and Wales; where the only ground for divorce is to demonstrate that the marriage has broken down irretrievably. The parties are faced with the choice of issuing proceedings based on the 'fault' of one of the parties to secure an 'immediate' divorce, or alternatively waiting until they have lived separately and apart for two years before applying for a divorce with the consent of the other party. The requirement to allocate blame in order to secure a divorce without delay can be one of the greatest sources of tension, and if not handled sensitively this can cause animosity which sets a tone for how matters continue. As the alternative is to wait until two years have passed since separation, many couples prefer to 'bite the bullet' and issue the proceedings straightaway, as delay in resolving matters can be a further factor in increased hostility.    

I would support the introduction of a 'no fault' divorce system within the UK and hope that this issue is reconsidered in the next Parliament. I believe that this change would encourage couples to work together constructively to resolve matters arising out of the breakdown of their marriage constructively and with as little animosity as possible.

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Laura is a Senior Solicitor in the Family team based in Oxford.

Laura Bennett
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