A number of big names in the family law world have been
raising the prospect of removing the requirement of “fault” in the process of
There is already a non fault based circumstance, or “fact”,
which will enable a divorce to proceed and that is the fact of 2 years
separation with the parties consent.
The difficulty often arises where the parties can not wait
for 2 years. In this scenario, they must rely on fault based facts such as
unreasonable behaviour or adultery. Reliance on these facts can unnecessarily
“raise the temperature” between the parties, which is what most family law
solicitors are trying to avoid.
One hundred years ago, when divorce was a matter of social
status, making it important to establish the innocent party, this issue probably
did matter. However, in the 21st century these issues are no longer
important and the mood, amongst many, has moved towards a simplified divorce
process, which does not rely on fault, being implemented.
This may also have the effect that the divorce process can
become a largely administrative function, which does not require judicial
supervision. This in turn will make the process more straightforward and user
friendly for those who are forced to have a DIY divorce as a result of the
legal aid cuts.