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6: No-fault divorce – is it that simple?

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Resolution has launched its campaign for 2015 and one of its key messages is to promote no-fault divorce. Having practised in Australia for many years under a no-fault based divorce system, I can vouch for its effectiveness. It does work very well and its introduction to English Law would, in my view, be a welcome step forward.

It has been suggested, and I have seen in practice, that fault-based divorces often raise the temperature and can lead to greater conflict when trying to resolve financial and children disputes. Most recent figures show that in 2012 there were 72,000 divorces that cited unreasonable behaviour or adultery, however by removing the element of blame it is hoped that no-fault divorces will help married couples ‘get off on the right foot’.

Under Resolution’s proposal, one party would be able to give notice that the marriage has broken down irretrievably, and if either or both partners believe it is the right decision then the divorce would proceed.

However there are details that remain unclear in the proposed reforms, and some of these may inadvertently increase the occurrence of ‘jurisdiction shopping’ or ‘the race to the Court door’ for those couples who have the ability to select the jurisdiction in which they file for divorce. I regularly act for English couples, but elements of international law cross my desk on a daily basis, such as when a spouse is domiciled in a different country or the parties spend time in two different countries. In these situations, it’s not uncommon for parties to choose a jurisdiction where they are most comfortable or where the Courts and the law may be more favourable to one spouse, which means the proposed reforms may prove to be prejudicial.

As England (and London in particular) is proving to be a global hub for divorce, a change in the law may have a greater impact on cases than originally envisaged. Of course, these issues can be canvassed but introducing reforms to English divorce law may not be as simple as first thought.

24 February 2015

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