The time has come for no-fault divorce

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By Sarah Houston

If you have divorced in England and Wales, or know someone who has divorced, then there is a good chance that one party would have been blamed for the breakdown of the marriage, be it “unreasonable behaviour” in some form or adultery. Sadly, this would have undoubtedly increased the conflict between the parties and caused unnecessary animosity and stress.

You may find yourself in a situation, where you are currently married and you feel that you and your partner have just simply grown apart. Why shouldn’t you be able to get divorced when the relationship is clearly over, but neither of you are at “fault”?

Existing 50-year-old divorce laws in England and Wales, presently dictate that there is one legal ground for divorce: the “irretrievable breakdown” of a marriage. The set of grounds for divorce, under the Matrimonial Causes Act 1973, requires an applicant to either prove that their partner is at fault through unreasonable behaviour, desertion or adultery. Alternatively, if both parties agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years...

There has been huge publicity over the case of Owens v Owens, in which the Supreme Court ruled last year, that Mrs Owens could not divorce her husband until five years had elapsed. In this case, Mrs Owens and her husband had been living separate lives since 2015.

At TWM, we empathise with people who feel they may wish to end a loveless marriage, but are then faced with the prospect of enduring a long arduous separation, in the absence of any evidence of fault. Thankfully, having taken over 20 years to get no-fault divorce back onto the Parliamentary agenda, a new bill, the Divorce, Dissolution and Separation Bill, was put before Parliament in June this year. To date, it has reached its second reading stage in the Commons and has cross-party support.

The Government’s new bill, would remove the power of a respondent to oppose a divorce. 20 years ago, a Law Commission report set out the case for reform, highlighting that the use of fault may trigger or exacerbate parental conflict, detrimental to children. In the national survey, 62% of petitioners and 78% of respondents said that in their personal experience, using fault had made the process more vitriolic, 21% of fault-respondents said fault had made it harder to agree arrangements for children and 31% of fault-respondents felt fault had made financial resolution more complex.

TWM is an advocate for the case for reform to the current fault-based divorce laws. We welcome a modern approach to divorce, which reflects the current needs of our society. The new legislation will also abolish the opportunity for one partner to contest a divorce, if the other one wants one.

Under the proposed legislation, it is understood that the requirement for evidence of adultery or unreasonable behaviour would be substituted by a statement of irretrievable breakdown. The current two-stage legal process referred to as decree nisi and decree absolute would remain in place and there will be an option for a joint application for divorce.

Furthermore, there will be a minimum timeframe of six months from petition stage to decree absolute – which brings the marriage to an end. At the conclusion of this period, the applicant will be required to continue to assert their decision to seek a divorce, in advance of the divorce being granted.

The proposed legislation is a colossal step forward in enabling marriages to end more harmoniously. If you require any advice, or know someone who would benefit from some discrete advice in relation to separation or divorce, then please contact us at TWM for a confidential meeting and we will guide you through the process.

For further information, please contact sarah.houston@twmsolicitors.com

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