Whose fault is it?
If you have only recently separated from your husband or wife, then you may be quite surprised to find out how the divorce laws work in this country. Currently unless you have been separated from your husband or wife for 2 years (this can include living separate lives within the same house) then the only fact on which you can base your divorce is either the other person’s adultery, or their unreasonable behaviour.
The unreasonable behaviour is a subjective test. This means that it only has to be unreasonable to you and not anybody else. But the upshot is that if you separate from someone you have to make allegations of fault in order to start divorce proceedings if you have not been separated for 2 years.
This can, frankly, make a bad situation worse because the relationship between you may already be strained without having to come up with a written paragraph about whose fault it was the marriage ended and the particulars of why. Your priority during a separation should be to work constructively to make decisions about what happens next. This is crucial where there are children involved so that they feel as secure as possible.
In our experience of helping clients to make arrangements following a separation, getting people to formally explain whose fault it was is, at best, rarely helpful. At worst it can cause a relationship just resting on civil to breakdown. When the relationship between a separating couple completely breaks down, they are often left completely unable to communicate with each other. Their children are often caught in the middle and witness conflict that can unsettle them and affect their confidence. It can lead to behavoural, social and even physical health problems.
Why does this onerous burden still exist? Well a number of people are concerned that if you make divorce easier more people will do it and not try hard to make their marriages work. Given that the divorce rate is currently about 1 in 3 couples it’s hard to see that getting much worse. Anyone who has ever gone through a separation will tell you it’s not something they have done lightly.
We would suggest that if people need to understand why the marriage failed then working through this in private with a trained counsellor is much more helpful than formalising this in a public document.
Resolution, which is an organisation that represents family lawyers, mediators and other practitioners in England and Wales has been campaigning to change the law for some time. They have prepared a blog which can be accessed and commented upon here
If you are affected by our outdated divorce laws, or if you are simply concerned that this is the position then please make some noise about it either by sharing the links with friends, or on social media, or by writing to your MP.