Family support service backs removal of fault-based divorces

The Children and Family Court Advisory and Support Service (Cafcass) has backed government plans to introduce a no-fault divorce system and urges parents to seek legal advice at an early stage to reduce potential conflict.

In a statement it said: “Early legal advice in the divorce process would be advantageous to parents to help them resolve any issues quicker and prevent problems from escalating, which is especially important given complex matters such as child arrangements and finances must be resolved.”

Cafcass made the statement in response to the Ministry of Justice’s consultation on reforming the legal requirements of divorce. It says it’s important to move the focus away from blame to making arrangements that are in the best interests of any children involved.

There are currently five reasons for being granted a divorce by the courts: adultery, unreasonable behaviour, desertion, two years separation if both agree to the divorce, or five years separation, even if the husband or wife disagrees.

This has led to many couples using claims of unreasonable behaviour as a way of avoiding the requirement to wait two years.

Ministers say they want to reduce the antagonism of citing fault and the anxiety it creates, at an already trying time for couples and their children.

Therefore, a new notification process will allow people to notify the court of the intent to divorce, while removing the opportunity for the other spouse to contest it.

Cafcass said it was in favour of such a process as it would allow one or both divorcing parties to signal their intention to divorce without having to submit a reason for why their relationship has irretrievably broken down.

Its statement says: “From our work with over 60,000 children whose parents go through divorce or separation proceedings each year, we see first-hand how mutual hostility between parents can become intolerable for children.

It said this insight formed the basis of its consultation response, a summary of which is below:

• We support proposals to introduce a sole and joint notification process that can help shift the focus away from blame and on to arrangements for any child and financial matters.
• We support the removal of the right to contest, which can add to the conflict and uncertainty for children but rarely results in a change in outcome.
• We support the retention of a two-stage divorce process (decree nisi and decree absolute).
• We support a timeframe of six months from petition to decree absolute, which takes into account the child’s timescale given the impact of their parents’ separation on them will have started months or even years prior to the divorce notification.

The government is expected to publish more detailed proposals later this year after having considered all the responses from the public consultation.

We shall keep clients informed of developments.

Please contact Kirsty Bowers or Natalie Nero if you would like more information about the issues raised in this article or any aspect of family law.