In April 2022 the Government finally introduced a system of no-fault divorce in England and Wales, doing away with the need for one party to show that the other was responsible for the breakdown of the marriage.

The reform was welcomed by many people, some of whom had been calling for it for over thirty years. And one of the primary reasons for calling for it was that they hoped that it would remove blame from the process, thereby reducing animosity, and increasing the chances of the parties reaching agreement over important issues such as arrangements for children and finances following the divorce.

But now, after three years’ experience of the new system some family lawyers are saying that no-fault divorce has not removed blame, but rather just moved it further along the legal process.

Part of the healing process?

The argument that no-fault divorce simply moves blame further along the process seems to run as follows.

As part of the healing process, people getting divorced want to blame someone else for the failure of their marriage, and the ability to blame their spouse, because of their adultery or unreasonable behaviour, enabled them to do this. Without that ability, they are having to attribute blame in relation to other matters related to the divorce, such as arrangements for children and finances. Therefore no-fault divorce has led to an increase in the number of people alleging bad behaviour by the other party, within proceedings concerning arrangements for children and finances.

But other divorce lawyers report that no-fault divorce has actually led to a significant reduction in conflict between divorcing couples, even if it has meant that some are frustrated by the inability to process their emotions by attributing blame for the breakdown of the marriage.

The blame game

Obviously, marriage breakdown will often involve high levels of animosity between the parties, with the result that one or both of them will want to use the legal process as a means of ‘getting back’ at the other.

And even if there is little or no animosity to begin with, it is quite natural for parties to do everything they can to achieve their aim in any ancillary court proceedings, for example concerning arrangements for children or finances, even if it means antagonising the other party.

So perhaps completely doing away with animosity within the overall divorce process was always too much to ask of the new no-fault system. Some parties will want to play the blame game no matter what the system.

But maybe at least doing away with the requirement to attribute blame has had some effect. At least the system itself does not encourage the blame game. This will surely mean that some divorces are more amicable than they would have been under the old system, particularly as the party being blamed will no longer be driven to respond in kind.

And the argument that allowing one party to get the desire to blame the other ‘off of their chest’ (and thereby making arrangements for children and finances more amicable) by attributing blame for the breakdown of the marriage within the divorce procedure obviously assumes that they will not pursue blame into ancillary proceedings regarding children and finances. Is that really likely?

And there is one other point that should be mentioned about the new no-fault divorce system. It introduced for the first time the possibility that both parties could apply for the divorce jointly. About a quarter of all divorce applications are now made jointly. This must also surely have led to a reduction in conflict. Merely being the party against whom divorce proceedings are taken must often increase animosity in that party, even if they are not being blamed for the marriage breakdown.

In short, whilst it is no doubt true that many will still want to play the blame game, and possibly that some will feel frustrated by their inability to attribute blame as part of the divorce procedure, is it not also true that in many cases the no-fault system has indeed reduced conflict?