Insights and inspiration
07 July 2014
Fault as a concept in relationship breakdown has had a long life, though not necessarily a productive one. And even though Australia has had no fault divorce since 1976, when the Family Law Act came into force, some people still cling to notions of blame, and how that might be worked out both in parenting arrangements, and in financial consequences of relationship breakdown. The notion of fault and blame sometimes, though rarely, even arises in divorce itself.
There have been attempts over the years to reintroduce fault, particularly as a kind of punishment for bad behaviour in financial terms, but none of these has been successful except in one very limited way. Family violence, if persistent and serious, can give rise to financial consequences on breakdown of relationship.
In that context, the law in England has a bit both ways. There is only one ground for divorce, the irretrievable breakdown of the marriage, which is pretty much what we have. However, for English couples, irretrievable breakdown of marriage has to be proved by one of five "facts". The most commonly used "facts" are adultery, unreasonable behaviour and two years separation where both parties consent.
Recently the president of the Family Division of the English High Court of Justice has said "Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?"
To which a leading commentator has added that he agrees, provided there is a breathing space. Lady Butler Sloss when President of the Family Division herself, labelled fault based divorce as a legal fiction. In England the reality is that if both parties wish to divorce, they can do so. They agree on some trivial examples of unreasonable behaviour, and away you go.
The "breathing space" idea sounds remarkably similar to what we do, which is to require 12 months between the date of the breakdown of the relationship and the filing of the divorce application itself.
If and when England does change its laws, we shall report on the change.
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