North East Connected

The implications of No Fault Divorce

By Jacqueline Emmerson, Managing Director at Emmersons Solicitors –

As a divorce lawyer of 29 years standing the issue of No Fault Divorce really does bother me. In the very public case of the lady who can not obtain a divorce, we have the poor respondent. A man who has done nothing wrong in the eyes of the law.

For years I have dealt with the fallout and destruction that a divorce can have upon the person who is being left behind. It is all too common that one party leaves as they have fallen in love with someone else. Or they are simply bored with their marriage. At the moment, the person left behind has some control over the timetable of the divorce. This is extremely important. They need time to get over the shock, many will have a breakdown, their world, often that of their children has fallen apart. Under current law, they have time to regroup and to determine if they will issue proceedings themselves eg. on the grounds of adultery.

Being divorced has major implications in respect of pension entitlement and death in service benefits. Imagine if the leaving party could swiftly obtain a divorce and then the week after Decree Absolute remarry. Where does this leave the Respondent financially? It is simply not good enough to say that finances can be sorted out after divorce, in order to protect the Respondent, and possibly children, they need to be sorted out during the divorce process.

Yet the gathering of financial information takes quite some time, it takes emotional input at a time when the person who has been left may have no energy to deal with this. Being forced to deal with a financial settlement when in a vulnerable state, I feel, will lead to worse financial outcomes.

What of the person who has been left who is part of a religious community? Too many of my older Catholic clients, divorce is simply wrong, it is a huge issue and against the teachings of their church as they were growing up. Almost unheard of in their own community even as I began my career.

I know that for many of my Sikh and Muslim clients divorce has a major impact on their standing in their own community.

For all of these reasons, I feel that we should not have a No Fault Divorce as the only default option. Currently, it actually is one option in a list of five, four in a same-sex marriage.

To be clear, if both parties consent to a divorce then they can with two years and this does not require any blame to be apportioned. If the person who has been left does not consent then the leaver can obtain a divorce after five years without the consent of the other party. This allows that party some time to regroup, to move on with their lives, and most importantly affords them, and possibly their children, financial protection in respect of pensions.

Marriage is an important undertaking either in terms of religion or simply contractually. As far as I can see current divorce laws were drafted to take into account most situations. To protect the innocent party and equally to allow blame in the case of adultery or unreasonable behaviour.

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