UK considering no-fault divorce?

by Michelle McDermott on June 20, 2014

Michelle McDermott

Could it be true? Could the UK finally follow Australia’s lead 40 years later to introduce ‘no fault’ divorce which is completely separate from the determination of financial and children’s matters? Well, hooray for UK Judge, Sir James Munby, who recently suggested that “fault” as the basis for divorce was outmoded. I could not agree more. Having practised family law in the UK, I found it baffling that in order to apply for any financial remedies or orders regarding children, you first had to apply for a divorce. To make matters worse, you then had to either articulate particulars of ‘unreasonable behaviour’ of the other party or claim that the other party had committed adultery! Talk about kicking a couple when they’re already down and the pain of their separation is still so raw.

In Australia, there is no need to apply for a divorce prior to applying for financial or children’s orders. In fact, the actual divorce is a relatively simple process usually requiring only one Court appearance when the divorce is granted. This is most often completed well after the finances and children’s arrangements have been sorted. That’s not to say, of course, that there may still not be any ‘kicking’ going on with respect to arranging finances or how the children spend time with each parent. However, by keeping a divorce separate from finances and children, without any requirement to articulate why the marriage has failed, no additional angst is created.

It may well be that the UK also follows Australia’s lead with respect to de facto couples (or what the UK call cohabitees) in that after having lived together for more than two years, they are afforded similar rights to those who are married. From my experience, the best piece of advice you could ever give to a female in the UK was to not have a child unless you were married. Conversely, if a male was looking at parenthood, your advice had to be ‘don’t get married’! In fairness, the changes to the Australian law with respect to de facto couples are not even 10 years old yet, so we’re not that far ahead of the UK in terms of this issue.

On a final note, I must tip my hat to the UK when it comes to same-sex marriage – they are ahead in leaps and bounds and I can only hope that we follow in the UK’s footsteps during my career.

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