No Fault Divorce
28 Dec 2018
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What is a ‘no fault divorce’?
You may have seen on the news about proposed changes for a ‘no fault divorce’. Current law states that couples seeking a divorce in England and Wales must either spend a minimum of two years separated or one must blame the other for the marriage breakdown, citing adultery or unreasonable behaviour. Even if both partners mutually agree the relationship is over, they still must apportion blame if they wish to waive the two-year waiting period.
If there is no agreement or no evidence of fault, the applicants must wait until they have been living apart for five years to apply for a divorce. In 2015, 60% of divorces in England and Wales were granted on adultery or unreasonable behaviour. By contrast in Scotland where divorce law is different, this percentage was only 6%.
The Government is reviewing this process and the necessity for blame to be attributed. The consultation which ended on 10 December 2018 sought views on several elements of a divorce including ‘removing the need to show evidence of the other spouse’s conduct, or a period of living apart’. The results of the consultation are eagerly awaited. Will a ‘no fault divorce’ be introduced?
What is the significance of the consultation?
Currently, the need to attribute blame to speed up a divorce means that couples who are already having a difficult time must attach blame to the situation, when in reality the couple often believe that the relationship has simply broken down. This can be potentially damaging for the relationship going forward, particularly when decisions need to be made about finances and parenting arrangements.
Removing the need to blame from the divorce process will increase chances of successful non-court dispute resolution, in turn reducing the burden on the family court.
The removal of the blame element should result in a more amicable divorce process, encouraging a more positive relationship and therefore more constructive discussions, with less conflict. This means increased chances of successful non-court dispute resolution which in turn reduces the burden on the family court.
As a member of Resolution Hepburn Delaney Solicitors subscribe to a code of conduct to deal with family law matters in a way to reduce or manage any conflict. The current divorce system makes it very difficult to follow this code because of the need to apportion blame and fully support the Resolution campaign supporting no fault divorce. To join in with us, please visit the Resolution website:
Why has the suggested reform come about?
There has been an increased demand for change following the headline news legal case of Owens v Owens (2018).
The facts of the case are not unusual. Mr and Mrs Owens married in 1978 and have two adult children. With the marriage hitting difficulties, In February 2015 Mrs Owens moved out of the former matrimonial home and they have not lived together since. They are now 80 and 68 respectively.
In May 2015, Mrs Owens filed a divorce petition based on unreasonable behaviour providing evidence of incidents. Such petitions usually progress without any real issue or scrutiny. However, Mr Owens defended the case, arguing at the trial that the examples given of his behaviour were not enough to satisfy the test. Whilst the judge found that the marriage had broken down and that Mrs Owens could not continue to live with Mr Owens, he ultimately agreed with Mr Owens and refused to grant the divorce. Mrs Owens must remain married to Mr Owens until 2020 when she will be able to rely on the ground of 5 years’ separation without his consent to a divorce.
To most observers it seems incredible that someone must remain locked in a loveless marriage against their wishes. However, the Court was handcuffed by the current law and legally were correct in refusing to grant the Divorce. Therefore, the call for ‘no fault divorce’ has gathered strength.
Commentary on the matter
Christina Blacklaws, the president of the Law Society, said:
“Making couples attribute fault in order to end their marriage can escalate the differences between them in an already charged situation. We welcome news the Ministry of Justice is to consult on proposals to update the divorce law.”
and Justice Secretary David Gauke said:
“Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples.
That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.”
How can Hepburn Delaney Solicitors help you?
Hepburn Delaney will be following the outcome of the Government consultation closely as the no fault divorce debate continues so we can provide clients with the latest advice. In the meantime, if you are separating or divorcing, our specialist family team at Hepburn Delaney are here to help you. Please contact us on 01442 218090 or via https://www.hepburndelaney.co.uk/contact-us/