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No Fault Divorce

28 June 2019

The decision to divorce is not something anyone or any couple take lightly. If someone does come to the sad decision that separation is the only way forward they are still faced with navigating the archaic divorce laws stemming from the 1973 Matrimonial Causes Act. Society has changed almost beyond recognition since 1973 and professionals and the public alike have been advocating a change in the divorce laws for many years.

The current position

In order to divorce you must prove the marriage has broken down irretrievably by proving one of 5 different facts as:

  1. Adultery
  2. Behaviour
  3. Desertion
  4. 2 years’ separation with consent; and
  5. 5 years’ separation

Therefore in order to proceed immediately with a divorce you have to choose one of the fault based facts listed at 1 to 3 above. This requires accusations at the start of the process even if the parties have reached a mutual decision that the marriage is at an end. The fault based system is paternalistic at best and punitive at worst. It leads to a significant increase in tension before the process has even really begun and when there are children involved the more acrimonious the divorce often the bigger impact it has on them.

The government’s proposals for reform (which will also apply to the dissolution of civil partnerships) could not come soon enough. No fault divorce was once again in the spotlight earlier this year after the Supreme Court’s judgment in the case of Owens v Owens, This was a contested divorce and Mrs Owens was not able to end her marriage as she failed to satisfy the legal test for irretrievable breakdown. She was not able to prove that her husband’s behaviour was ‘such that she couldn’t reasonably be expected to live with him any longer.’ The Supreme Court ruled that Mrs Owens would need to stay married to her husband for 5 years after their separation, in order to divorce him without his consent or evidence of fault. This case highlighted the need for divorce law to be updated to reflect modern relationships.

The proposed new no fault system means a couple or one party would only need to notify the court that their marriage has irretrievably broken down. The ‘five facts’ would be removed thus ending the requirement to prove fault. In addition, the government also plans to allow couples to give notice jointly adding an air of collaboration to the process when circumstances are appropriate. This should help to set the process off on a more conciliatory and less combative footing.

Proposals go even further by removing the ability for one person to contest a divorce which means situations such as that faced by Mrs. Owen will no longer occur.

Furthermore, there is the intention to introduce a minimum timeframe of six months from petition to decree absolute to allow a ‘cooling off period’. It is assumed to try and deal with accusations, that if the divorce process is made too easy, it will undermine the institution of marriage. Church groups are however already largely vocalising opposition to the reform. It is hoped that the government can find a way forward that deal with those concerns whilst also helping couples to make their own choices and reduce conflict as well as achieving an early settlement.

These changes would also apply to the dissolution of civil partnerships.

By Joanna Farrands

For further advice on the above topics, please call us on 01483 543210 or alternatively email enquiries@barlowrobbins.com