Divorce: Fault or No Fault?

I was surprised to read of a woman in England who was denied a divorce by the Supreme Court. She sought a divorce after 40 years of marriage at age 68. Her 80-year-old husband refused the divorce. She must remain married until 2020, after having lived apart for at least five years. At that time the divorce is granted, even if your spouse disagrees. A Parliament judge stated that being in a “wretchedly unhappy marriage” was not a ground for divorce.

Grounds for divorce in England and Wales are subject to a “fault-based” finding. You must prove that your marriage has broken down irretrievably and cite one of the following reasons; adultery, unreasonable behavior, desertion, you have lived apart for more than two years and both agree to the divorce, or you have lived apart for at least five years, even if your partner contests it.

At-fault divorces may create unnecessary antagonism in an already emotional situation. In England and Wales 70% of couples said that using fault made the process more “bitter”; twenty-one percent said it made it harder to sort out arrangements for children; thirty-one percent said it made it harder to sort out finances; sixty percent of divorces used fault-based grounds. A law professor in Scotland believes that “the judicial system doesn’t have time to question the allegations or demand any real proof, meaning that accusations go unquestioned, even if the accused deny they have behaved unreasonably or had an affair.” This leads to manipulation of the system.

This story made the news headlines in the U.S. perhaps because this is a surprise to Americans. Every U.S. state offers the option of no-fault divorce in which they are not required to show wrongdoing by either party. In many states, no-fault is the only option. California was the first US state to pass a no-fault divorce law. New York was the last state to pass it. Prior to no-fault divorces, there was an adversarial system, demonstrating the fault of one, and only one, party. Traditional fault grounds are cruelty, adultery, desertion, confinement in prison, and a physical inability to engage in sexual intercourse, if it was not disclosed before marriage. One study showed that domestic violence and female suicides declined in states that legalize no-fault divorce. One spouse cannot stop a no-fault divorce.

In Illinois, a divorce can be based on either fault, or no-fault grounds. Reasons that one might claim at-fault grounds are to gain an advantage in child custody cases or a dispute about division of property. For more information, see Nolo’s Essential Guide to Divorce by Emily Doskow.

Some believe that a no-fault divorce system undermines the institution of marriage. This may be from religious beliefs, or from civic arguments that our society is damaged from failed marriages. They prefer a long waiting period before a divorce is granted. It allows couples to change their minds and helps a person who does not agree to the divorce make adjustments to this profound and life-changing event.

Divorces that are kinder serve both parties as well the children. If you cannot remain married, the best thing you can do for yourself and your family is to take the high road whenever possible. This means trying to compromise, consider your partner’s feelings, seek to negotiate a solution that works for everyone, not just you. Don’t create or escalate conflict. Although this is not always possible, you will feel better about your handling of this painful event.