The Government have announced plans to introduce a “no fault” divorce. The plans would remove the need for separated couples to allege that their spouse is to blame in order to acquire a divorce.
The intention would be to reduce family conflict in the divorce process and may also mean that spouses may no longer be able to contest the divorce proceedings.
The key focus will be to help families focus on key practical decisions and look to the future. Ministers want to reduce the antagonism of citing fault and the anxiety it creates at an already trying time for couples and their children.
The current divorce law states that the only ground for a divorce is that the marriage has broken down irretrievably. To show this, it is necessary to rely upon one of the following facts:-
- That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
- That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
- That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
- That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
- That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Unless the parties have lived apart for at least two years then it is currently necessary to blame the other for the divorce. It may also be the case that even after two years of separation the consent will not be provided by the spouse.
A recent case of Owens v Owens highlighted the difficulties that can occur in such circumstances. In this case the court found that there had not been behaviour that was sufficient so as to determine that the wife could no longer live with her husband despite the fact that they were already no longer living together. Unless the husband was therefore to give his consent to a divorce they would need to remain married until they had been separated for five years.
The family law organisation, Resolution, has campaigned for changes to be made particularly due to concern that petitions based upon behaviour have a tendency to antagonise and to engender animosity. Senior members of the judiciary have also supported the introduction of faultless divorce.
The government proposals will apply to both marriages and civil partnerships and include:-
- a) retaining the sole ground for divorce: irretrievable breakdown of a marriage
- b) removing the need to show evidence of the other spouse’s conduct, or a period of living apart
- c) introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
- d) removing the opportunity for the other spouse to contest the divorce application
The consultation will also consider a minimum timeframe between certain stages of the divorce to allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable. The current period is 6 weeks. Resolution had previously recommended a period of 6 months.
The changes may bring the process in line with other countries who have similar procedures. In Scotland, for example, the periods of separation to prove that the marriage has broken down irretrievably are one year when both parties consent and tow years if they do not.
The consultation focuses on the legal requirements for ending a marriage or civil partnership and does not cover other aspects of matrimonial law such as financial provision.
The consultation is to run for 12 weeks closing on 10 December 2018.