Infidelity should not be a marriage-breaker

13 Apr 2015News

'No-fault divorce' should include year-long cooling off period, recommends Lady Hale

Britain's most senior female judge, Lady Hale, has once again recommended that blame be taken out of divorce - a recommendation she first proposed two decades ago.

The Supreme Court deputy president told The Times: 'Our recommendations were perfectly straightforward and simple: the government introduced complications so that what was eventually enacted no one thought workable. I am sure we should look [at the proposals] again.'

Continuing, Baroness Hale, said infidelity should not be a marriage-breaker and suggested that couples take a year-long 'cooling off' period before seeking divorce.

'We should make it take longer to get a divorce and encourage people to sort out what happens to the home, children, money before, rather than after, they get a divorce,' she said.

A number of jurisdictions, including Australia, Canada, Spain, Russia, and the United States, offer their citizens the choice of a no-fault divorce.

Yet in England and Wales, where approximately 120,000 couples divorce each year, the current law requires individuals to cite one of five reasons: adultery; unreasonable behaviour; desertion; two years' separation with consent; or five years' separation without consent.

Commenting on the possible of introducing no- fault divorces, the CEO of National Family Mediation (NFM), Jane Robey, said that the UK's divorce laws were 'a relic of a bygone age' and that the need for reform had been 'clear to see for decades'.

'The differences that evolve between people in a relationship are sometimes irreconcilable. So it is a fact of life that couples separate,' said Robey. 'Recognising and accepting this does not undermine the institution of marriage. Rather it enables us to take a sensible and pragmatic approach to ensuring that in the fall-out from the decision to divorce, everyone in the family has the best possible chance of moving quickly on to the next phase of their lives.'

Robey suggested that the introduction of Lady Hale's 'cooling-off period' would ensure a couple can arrange what is best for children, property and finance before getting a divorce, rather than litigating those issues afterwards.

But, she cautioned against attempts by the legal profession to gain from a cooling-off period. 'Safeguards would of course be needed to ensure this period was used purely to positively shape the futures of all those involved in the break-up, especially the children, rather than becoming an opportunity for lawyers to move in and extract more business over a longer period of time,' she said.

Lawyers, however, seem split on the issue of no-fault divorce and cooling-off periods. The former family High Court judge and chairman of the Marriage Foundation, Sir Paul Coleridge, told The Times: 'Lady Hale, a complete expert with decades of experience across this whole field, is entirely right.'

Meanwhile, Marilyn Stowe, the senior partner at Stowe Family Law, blogged: 'Personally, I would want to place some question marks against the Baroness' views. How long would people have to wait before a no fault divorce was granted? Six months? Twelve months? Twenty-four months?'

Stowe continued: 'She believes that financial settlements should be resolved before a divorce is granted - but how long will that delay the issue? It is not reasonable to leave people in limbo for lengthy periods when a marriage has, to use the legal terminology, irretrievably broken down.

'No-fault divorce is fine but the devil is in the detail.'