Following years of campaigning by the legal community, the UK parliament passed the Divorce, Separation and Dissolution Act in 2020, which came into force on April 6, 2022, introducing the so called no-fault divorce.
All my life as a Family Law Layer (and -since 2010- also as a Collaborative Lawyer) has been carried out under the no-fault system provided by the Italian Law: therefore the following reflections could be of some use, today.
Since its enforcement in 1970 (Law n. 898) the Italian Divorce has never required blaming the other party in order to get a marriage dissolution order: the simple statement that life with the other spouse has become “intolerable” cannot be disproved in our Courts when six months of separation have gone by. Likewise, under the new UK Act, spouses will be able to jointly make an application for divorce based solely on their statement that their marriage has irretrievably broken down.
But… will a no fault-divorce work for everybody?
During my experience as a family lawyer, mainly divorcing Anglo-Italian or American-Italian couples, I have found difficult -many times- to explain how irrelevant, or counterproductive (except for very special cases) it might be to play the blame-game in the Italian Courts. Which is hard to believe of a Country whose population is considered to be extremely litigious and hot-tempered!
It’s a fact that 75% of all divorce orders in Italy, are made through a joint divorce application with the Court, when not completely out-of-Court, sometimes without lawyers and without even entering a Courtroom.
Does it mean that the parties to a no-fault system have learnt how to be more “kind” to each other, when compared to those acting in a system of contested divorce?
Not necessarily: my experience is that -in a no-fault system- the battle will only be moved from attributing the “blame” on the other party to some other topic (such as the custody of children and financial issues, typically ). Sometimes this may happen in the cruellest of the ways.
A no-fault divorce cannot cancel resentment and pain. A joint application will not, by itself, pacificate the litigants. Filing a solo application at the initial stage and take the first step can even be a good thing in order to buy time and defuse the conlict.
In my view, there is no use in enforcing a no-fault divorce when this is not accompanied by a true collaborative practice aiming at the acceptance of the “loss”. The two proceedings, the legal and emotional divorce, don’t always go hand in hand: Collaborative Practice can be a good way to make them match.
However: one thing is true, we would never go back to a fault based system.