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Is it time for no fault divorce?

The death of property developer Scot Young last week, impaled on railings in central London after falling from his penthouse apartment, was particularly gruesome.

While the manner of his death and the mystery surrounding it was enough to ensure that the story made the headlines Young’s name was already well known to divorce lawyers because for several years he and his ex-wife Michelle had been embroiled in one of London’s most acrimonious divorce battles. Their financial battle lasted 6 years and included 65 hearings and saw Young  spend six months in prison for failure to disclose assets.

It was interesting to read, in the same week, that Baroness Hale, Britain’s most senior female judge,  was calling for a system of no fault divorce to be introduced in this country. In an interview with the London Evening Standard she said: “We could do with having no-fault divorce. I think that would be an improvement.”

The Young divorce was clearly at the more extreme end of the spectrum but even the most amicable split can turn nasty once divorce proceedings begin and many would say that this is because in many instances; the party seeking divorce must launch proceedings by listing the other party’s “unreasonable behaviour”.

In order to obtain a divorce an individual needs to prove that the marriage has broken down irretrievably. They must then rely on one of five facts to show this, these include adultery, unreasonable behaviour, two years separation with the consent of the other party, five years separation without consent and desertion.

Given that many people do not want to wait two years for a divorce,  if adultery is not an issue, they must use unreasonable behaviour.

Many clients starting divorce proceedings reiterate that although they are sad that the marriage has ended, and sometimes angry and hurt, they want the divorce and the arrangements that go with it, such as for the children and the finances, to be handled in an amicable way.

But when a respondent sees his or her flaws written down in black and white this can be enough to make proceedings turn nasty. Hale’s suggestion seems eminently sensible. She suggests that couples should be able to make a declaration that their marriage has irretrievably broken down and if they are still of that view a year later they should be able to get a divorce. She suggests using the waiting time  to reach agreement about the finances and children. It would reflect the fact that for many people a marriage simply runs its course and that ending it is not because of someone’s affair or extreme behaviour but simply because it has reached the end of the road. It might allow people to end their marriage without becoming bitter enemies.

While it is unlikely a “no fault” divorce would have avoided the bitter wrangling of Scot and Michelle Young for the thousands of ordinary people without excessive fortunes to argue over a no fault divorce might just be what they need.