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No-fault divorce: preventing denigration on marriage breakdown

27th June 2016
No-fault divorce: preventing denigration on marriage breakdown

Once again headlines report a celebrity couple obtaining a quickie divorce. Jeremy Kyle and wife of 13 years, Carla Kyle, were apparently divorced at a 20-second hearing in February 2016. In truth, this was only one piece of the separation puzzle: decree nisi.

A decree nisi is a conditional order made by the court. It is the first part of a two stage process necessary to dissolve a marriage and confirms the courts agreement that the petitioner is entitled to a divorce. The hearing usually takes place without either party in attendance and, prior to this date, a number of key documents have to be prepared, served, acknowledged and reviewed by the court. It took Jeremy and Carla Kyle around five months to reach the decree nisi stage which may seem cumbersome but is common.

Divorce basics

Despite common misconceptions, there is only one ground for divorce in England and Wales: irretrievable breakdown of the marriage. This ground is evidenced by relying on one of five facts including adultery and unreasonable behaviour: the fault-based facts.

The pitfalls of fault-based divorce

Carla Kyle petitioned for divorce and relied on Jeremys unreasonable behaviour. A petitioner has to detail aspects of their spouses behaviour which they find unreasonable. It is only the petitioner who has to find the behaviour unreasonable (a subjective test) and so an unreasonable behaviour petition sometimes makes for unpalatable reading. Even the most anodyne particulars can be critical, upsetting and do little to promote a positive future relationship. The irony is that the contents of the petition have no bearing on future division of assets or child arrangements.

There is no justification for two adults who decide their relationship has ended to be forced to rehash history in order to progress to their separate futures. The legal definition of adultery has simply not caught up with modern day society. Two thirds of Brits think that sexting is cheating yet many would be surprised to note that adultery does not cover any type of sexual activity; it is limited to sexual intercourse. A spouse in an emotional relationship with a third party also does not meet the threshold nor does anything The Jeremy Kyle Show terms sexual contact. This, together with the fact that people do not want to wait a period of at least two years to separate, means that unreasonable behaviour is increasingly being relied on as a catch-all provision to divorce both emotionally and physically unfaithful spouses.

No-fault divorce: the change that is needed

Many family law practitioners and, I am sure, many divorcees agree that family law in this area is in serious need of reform, namely the elimination of a blame culture. At Vardags we champion the no-fault agenda. A no-fault divorce system, similar to the concept of irreconcilable differences we see in the States, would allow couples to file a joint divorce petition at court and advance to decree nisi stage with relative ease and speed, albeit not in 20 seconds. This creates a more child-focused approach to divorce, an ability to look at the key issues in financial matters and minimise unnecessary mudslinging.

The No-Fault Divorce Bill spearheaded by Richard Bacon MP would create a law fit for 21st century couples. The Bill had its first reading in the House of Commons on 13 October 2015 and, sadly, has been parked on St Margarets Street ever since.

It may be too late for Jeremy and Carla, but the shift in public attitudes away from blame needs to be followed by legal reform. The 70s mentality of anchoring responsibility for the demise of a relationship to one person has no place in the matrix of issues for couples separating in 2016. As Jeremy would say, get on with your life.

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