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Yes, New York Times, there Is No-Fault Divorce in England

It seems like whenever anyone wants to do make any change in divorce laws, the only story the media cares to write about is "Fault" versus "No fault" divorce -- both of which are understood in terms of caricatures from generations ago, with little or no attention to what the new proposals, or current law, actually do. Now the New York Times (Lyall"Tuna Again? In Fault-Finding England, It’s a Cause for Divorce", 4/7/12) says England "does not have a no-fault divorce law. ... There was a push in 1996 for a no-fault divorce law, but the plan died amid worries that it would make divorce too easy."

England has actually had a no-fault divorce law since 1973 (below). It allows divorce based on living apart for two years if there's mutual consent or desertion; and five years even if there isn't. As for the 1996 reform, it was enacted into law under the John Major government, but by the time it was supposed to be implemented, Tony Blair had been elected and his government decided not to implement it. 

The 1996 no-fault law cut the waiting periods to one year, but it also did something unique and, I think, brilliant: it applied the waiting period to all divorces, eliminating "quickie" divorces on petty "fault" grounds (several of which the Times article describes in amusing if nauseating detail). The drafters realized that when you impose only a minor speed-bump on the way to divorce, you don't have to provide all the exceptions that would be needed in the case of a 5-year or longer waiting period. Although the 1996 law was never put into practice in England, it was copied in Fiji (where it also included extensive provisions for marriage counseling and education), and has inspired two similar multi-state reform proposals in the U.S.: The Parental Divorce Reduction Act and the Second Chances Act.

The caricatures of divorce law that the media has been using since at least the 1960s are (1) "Fault Divorce", in which even two spouses who both want a divorce cannot get one unless they convince a judge that one of them has committed adultery or domestic violence, often with faked evidence, and (2) pure "No-Fault", in which anyone can demand and get a divorce any time, with no wait, regardless of what the other spouse wants or needs, and nobody's behavior gets considered in court. But in reality, nearly everywhere has something in between these two extremes, and the real issue is not whether to have no-fault, but how.

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Matrimonial Causes Act 1973

Section 1. Divorce on breakdown of marriage.

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3)On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.

(5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

 

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