Divorce, Dissolution and Separation Act 2020 - the end of fault based divorce is in sight
I often tell family law clients that the English Channel may only be 30 miles wide but it may as well be 30,000 miles deep for le consentement. In England, we sometimes point to the generous financial provision for weaker financial parties as a sign of a civilised financial system. In other respects, we are not so far ahead.
A stark picture of differences in divorce procedures appears when you compare statistics on number of divorces and reasons for divorce. In both jurisdictions (referring to England and Wales vs. France, excluding Scotland and Northern Ireland) broadly similar numbers of people get divorced each year.
In 2015, about 80,000 no-fault divorces were pronounced in France, i.e. 79% of all divorces occurred without blame being apportioned to either party. For the rest, 11% of couples divorced after two years without passing blame either, and finally just 10% of couples divorced for fault-based reasons such as adultery or unreasonable behaviour.
In the same year, 0% no-fault divorces were given in England (yes zero). The simple reason is that divorce without attributing blame for the relationship breakdown is not available in England. The vast majority of the divorces granted in England and Wales were on grounds of fault. It’s hardly any better for the other couples in England and Wales – unless they wish to use the archaic and rarely available grounds of “desertion”, then the only other route is to cite two or five years separation – with two years requiring mutual consent. All three of these routes to divorce (fault based, desertion or separation) appear to me to be more anno 1816 than 2016 in terms of legal sophistication or the need to be on par with today’s social context.
As a lawyer, I (along with a great majority of English family lawyers) fail to understand why English law still does not allow for quick and amicable divorce proceedings, which are based on relationship breakdown, e.g. growing apart or mutual agreement to part, and not based on fault.
Changes on the horizon?
So does the future hold change for England and Wales and are we about to catch up our continental cousins? However, I am afraid changes still seem a long way off since a Private Members Bill from one MP has been put on indefinite hold by Parliament and the French are instead moving further ahead.
On the 19th May 2016, the French lower house of parliament voted to end the need for all divorce hearings in non-contested cases, whereas previously couples have had to go before a judge to establish that they cannot reconcile. This means that France will have a divorce system for the majority of couples which is administrative, does not involve the court at all, and which does not impose blame on either party.
They will not need to use the courts. For those wishing to obtain their divorce consensually, it is simply recorded before a notary (a state licensed legal official) for a € 50 fee and the spouses have 15 days to change their minds.
Where financial settlements are contested however and in presence of minor children, there will still be court hearings.
France may have other political and economic priorities to deal with right now as does England and Wales, but it is interesting that the issue has risen to the agenda of the French parliament where it hasn’t in England. In my opinion, the proposed French reforms and measures have a dose of common sense about them and make English divorce procedures look unfit for the modern world. The French measures free up the courts for more deserving cases too where in contrast the courts in England are struggling to cope.
For any further questions concerning Anglo-French divorce or separation issues please contact a member of our family team.
You may also be interested in reading our previous blogs:
This blog was co-written with Charlotte Kibler, French paralegal at Kingsley Napley.
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