For over 20 years, legal professionals have argued for ‘no fault’ divorce to be introduced in England and Wales. Ever since I started working for a Firm of Solicitors in 1999, majority of Divorce Petitions have been fault based.
It is argued that the current law increases hostility and is confusing.
Currently, if you want a divorce in England and Wales, you have to prove that your marriage has broken down “irretrievably” and you have to choose a reason for the breakdown. There are five options:
- Your spouse has committed adultery
- Your spouse has behaved unreasonably towards you
- You have been separated for two years and both agree to a divorce
- You and your spouse have been separated for five years
If you and your spouse are amicable and there is no one else involved, and you do not want to wait two years, you would have to rely on the fact of your partner’s “unreasonable behaviour”. This covers a broad range of behaviour from domestic violence to being unsociable. It is a subjective test, so it is what you find unreasonable, but it has to be sufficient to satisfy the Court.
The Respondent, somewhat understandably, may well be annoyed or upset by these allegations about their behaviour which can harm a previously amicable split. The Respondent may choose not to sign the divorce which can lead to a costly and time consuming Court dispute. It may also impact on an amicable agreement about financial matters or arrangements for any children.
Currently, to agree a divorce on the basis of unreasonable behaviour, there still has to be some admission of that behaviour.
Baroness Hale (Deputy President of the Supreme Court) first called for ‘no fault divorce’ in 1996 when she was a member of the Law Commission. The Commission proposed that a couple would state their marriage had broken down and be granted a divorce after a year if they did not change their minds. Baroness Hale continues to support ‘no fault divorce’ and in a recent speech at the annual Resolution Conference, she stated “the contents of the Divorce Petition can trigger or exacerbate family conflict entirely unnecessarily. There is no evidence at all that having to give reason for the breakdown makes people think twice”.
The only recent case where a divorce has been successfully defended is Owens v Owens. The Court refused to grant Mrs Owens a divorce stating her husband’s behaviour wasn’t objectively bad enough to make it reasonable for her to live with him. Mrs Owens has appealed to the Supreme Court.
The above is only a brief guide to the divorce process and, anyone considering a divorce should seek legal advice from our family law specialist on: 01684 216777.
By Wayne Phillips
Head of Family Law