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Britain’s most senior Judge calls for no-fault divorce

Friday, 01 December 2017

Baroness Hale the President of the Supreme Court has renewed calls for there to be no-fault divorce. As things stand in England and Wales a husband or wife need to prove grounds for divorce unless they are prepared to wait for at least two years. The grounds are that there has been an irretrievable breakdown of the marriage and the other party is guilty of unreasonable behavior or adultery.


Mike Follis, Head of Family Law at Davies and Partners, has commented “People have strong views on this subject which often reflect their view of marriage. I see cases in which both parties accept the marriage is over but in order to obtain a divorce allegations have to be made. In fairness I have only seen a couple of cases in my career of over 30 years when a party did not have grounds to start divorce and defended divorces are rare. The Family Law Act 1996 contained provisions for no-fault divorce but it never became law. Whilst I understand the arguments for no-fault divorce this needs to be tackled by parliament and so there would need to be the political will to see it through. The government has Brexit to sort out and I would be surprised if these reforms are given priority.


Concerns are rightly raised about the children of broken marriages. Will no-fault divorce worsen the situation? I do not think that in itself no-fault divorce will have any affect. The current law does not provide for any detailed consideration of the arrangements and wellbeing of the children unless one parent applies to the Court because there is a problem or the local authority becomes involved because of welfare issues. Most divorces proceed without the Court “overseeing” the arrangements for the children and I expect that regime will continue irrespective of whether we have a no-fault divorce.


There are issues in relation to resources and I see that further cuts are to be made in the budget for the Ministry of Justice. Children’s services and Cafcass have significant budgetary constraints so greater supervision of the children’s arrangement on divorce is unlikely”.


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