Is it time for a no fault divorce?
A Bill which proposes to create a no fault based ground for divorce has had its second reading postponed until March 2016.
The Bill, if implemented, would allow a divorcing couple to issue divorce proceedings on the simple ground that the marriage has irretrievably broken down. The Petition would have to be issued jointly, but would eradicate the need for either party to apportion blame, or to accept blame for the marriage coming to an end. Presently, the only other alternative would be for the parties to wait until they have been separated for 2 years so that a divorce may be issued based upon 2 years separation and the other party would need to consent to this. For some, especially where financial matters need to be dealt with, this is far too long so they chose to issue a Petition based on either Adultery or Unreasonable Behaviour, where the proceedings can be started straightaway. These are both fault based grounds leaving one party having to accept blame in order for a divorce to proceed.
The Family Law Act 1996 did provide for a no fault divorce in England and Wales, however, the incoming Labour Government, for unknown reasons, made the decision not to implement the parts of the Act relating to no fault divorce, and therefore, the chance for couples to issue on such grounds never materialised.
Resolution has been campaigning for no fault divorce for some time stating that the law urgently needs to change “to allow people to break up with dignity without a two year wait”.
So what is the current position and why now the calls again for a no fault divorce?
At present, in order for a divorce to proceed, a party must prove to the Court that the marriage has irretrievably broken down. In order do so they must rely upon one of the following 5 facts:-
- Their spouse has committed adultery and they find it intolerable to live with them.
- That their spouse has behaved in such a way that they cannot reasonably be expected to live with them (unreasonable behaviour)
- That their spouse has deserted them for a continuous period of at least 2 years immediately preceding the presentation of the Petition
- That the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the Petition and their spouse consents to a decree being granted. (2 years separation)
- That the parties have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the Petition, which does not require the consent of their spouse. (5 years separation)
With the exception of a petition based upon either two or five years’ separation, all of the other facts have a fault based element. Therefore, if one party is unwilling to wait for two years, a divorce will have to be issued on a fault based ground where the other party, in order for the divorce to proceed uncontested, will have to accept blame. This can make an already emotionally difficult and distressing process harder. Furthermore, with divorce and separation often being a time of conflict and heartache, apportioning blame for the marriage coming to an end in a situation where there are already a lot of potential flashpoints, can lead to more animosity between the parties which could spill over into the financial aspects of the separation and could have an impact on any children of the marriage and the arrangements for their care.
With recent significant cuts to the availability of legal aid and the Government’s push on mediation, making it compulsory before any proceedings concerning financial or children matters can be issued except in very limited circumstances, it would appear that a change in the law to allow divorcing couples to issue jointly simply on the basis that the marriage has irretrievably broken down, would fall in line with an intention to make the whole process less acrimonious and more cost effective.
Paul Richardson, Senior Family Solicitor in our Sheffield Office comments:
“I believe a change of the law to allow for a no fault divorce would be beneficial in keeping animosity and conflict to a minimum. This will allow parties to be more focused when dealing with other aspects of the separation, such as children and financial matters. However, it is still imperative, no matter how amicable a separation may be, that parties take expert legal advice regarding financial matters and ensure that full disclosure takes place to ensure that any agreement reached is fair, and that they receive all that they are entitled to. A concern is that if parties feel all is amicable that they can deal with financial issues between themselves. This leaves them open to perhaps not receiving the full entitlement that they ought to”
For any advice on the issues raised in this article please contact Paul Richardson.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.