`No-fault' divorce basis not debated

THE just-published Divorce Bill is very restrictive: following the constitutional amendment, it requires four years' separation before a divorce can be sought. That said, conservative critics have pointed out that it is a liberal law in that the sole grounds for divorce are separation, rather than a matrimonial fault.

The question of "fault" versus "no-fault" divorce has been hotly debated for many months in Britain as the new divorce legislation, introduced in an attempt to stem the rising numbers of divorces, zig-zagged through the House of Commons. It was finally voted through, much amended, last Monday.

Although this issue of fault was raised here during the referendum debate, it was overwhelmed by the broader question of whether divorce should be allowed at all. While many of the anti-divorce activists', complained that the Government proposal entailed the "most liberal" type of divorce regime, none of them could bring themselves to say they would favour fault-based divorce. So the question remained largely undebated.

The Divorce Bill resembles its predecessor, the 1989 Judicial Separation Act, in many provisions, except that divorced people may remarry. But there is another important difference. The 1989 Act provided for judicial separations on the grounds of irretrievable marriage breakdown; living apart for a year (with consent) or for three (without), and marital offences like desertion, adultery or unreasonable behaviour.

In this, it resembled Britain's 1969 divorce law, that allowed divorce to couples who had lived apart for two years (with consent), or five (without), and on the basis of the same kind of matrimonial offences.

The introduction of consensual divorce was seen as a liberal innovation at the time, although most divorces (75 per cent) were granted, on a fault basis, to avoid the minimum two-year wait. When desertion, adultery or, unreasonable behaviour were cited, and the petition was not opposed, a divorce could be obtained in three months.

The British reforms in the family Law Bill were aimed at slowing this Process down and promoting reconciliation and mediation. Its first draft proposed a 12-month cooling-off" period after an initial application. This was amended to 18 months. It encourages counselling during this period to seek reconciliation. Then mediation to get agreement on children, property and maintenance is promoted, though it is not compulsory.

If agreement cannot be reached on the terms of the divorce, through mediation or the courts, it is not granted. There must be another wait of 12 months, and, if there is still no agreement, the whole process begins again. ,

Therefore a divorce in Britain will now take about two years, if all goes smoothly, and a lot longer if it does not. Critics have, warned that this prolongs uncertainty and suffering for both spouses and children. Proponents of the reforms hope it will force people to reflect long and deeply before ending their marriages.

In Ireland, a divorce will take a lot longer, as a couple must have lived apart for four years before even instituting proceedings. It is possible to interpret this as living in "separate households" under the same roof, but in practice claiming this when seeking judicial separation has been the subject of string agent proofs.

The Irish Divorce Bill, like the British one, encourages counselling and mediation. It requires solicitors representing both parties to present to the court a certificate stating that they have discussed with them the possibility of a reconciliation, have provided the names and addresses of people qualified to help, and have done the same with regard to mediation.

They must also discuss the possibility of a judicial separation as an alternative to divorce. The court may adjourn the proceedings at any stage if it appears a reconciliation may be possible.

The provisions for custody of children, maintenance and the division of property are similar to those in the Judicial Separation Act. However, the Divorce Bill has a lengthy new section dealing with the splitting of pensions.

AN amendment on pension-splitting, introduced at the eleventh hour by the British Labour Party, was its supporting the family law Bill last Monday. Over 100 Conservative MPs had backed an amendment seeking to retain the concept of fault, but were defeated.

However, it will not become law in Northern Ireland. There the divorce law mirrors the 1969, British Act, which was introduced into the North through an Order in Council in 1978. According to Ms Pauline Knight, a Belfast-based family lawyer, a White Paper must now be published on the new divorce law, submissions sought, and a news Order in Council introduced. This will probably take years, and the no-fault" provision is likely to be hotly opposed by both the Catholic and some of the Protestant churches.

The idea of fault-based divorce finds little favour among family Lawyers. They point out that a matrimonial "fault" has, historically, often been fabricated, with the agreement of the other spouse, to speed up a divorce. It, is also often difficult and expensive to prove fault in court, they say.

But, more importantly, they stress the additional suffering this brings to children if their parents and the courts are forced to apportion, blame for the break-up of the family. For the sake of their continued relationships with both parents, central to the children's well-being, they should not be encouraged to blame one of them, they say.

However, while, a matrimonial fault is not a basis for seeking a divorce in the Irish Bill, the "conduct of each of the spouses" is a consideration the court shall "have regard to in making property and maintenance orders.