“But it’s no one’s fault”

For most people, experiencing the divorce process will be a necessary evil – a process which has followed a period of sadness and stress and one which is required to transport them into a new life. The process is under scrutiny and could soon see changes, which could ease the pain for couples who decide to end their marriages.

At the present time the only ground for divorce is that the marriage has broken down irretrievably. However, couples cannot stop there in order to be granted a divorce and for the petitioning spouse, “the Petitioner”, a certain fact must be proved to the Court.

There are currently five facts which can be relied upon in order to show the Court that the marriage has broken down:-

1. Adultery

2. Unreasonable behaviour

3. Two years separation – requiring the consent of the other party

4. Five years separation – consent of the other party not require

5. Desertion

From the 5 facts listed it can be seen that couples who wish to separate and divorce must wait a period of at least two years if they want to proceed without laying any blame on one another.

The burning question amongst family practitioners and the government is, is this fair? This is a particularly hot topic and one for debate, however, conclusions and decisions are yet to be determined. Should those who have simply reached a point in their marriage where they do not love each other for various reasons but not as a result of any particular fault of the other have to resort to blame in order to obtain a divorce? For now, the answer is yes.

Many will recall this year’s controversial case Owens v Owens [2017] EWCA Civ 182 in which the Court of Appeal refused an application for a divorce by Mrs Owens on the ground of her husband’s unreasonable behaviour. A lot of people are now of the opinion that the law needs updating to allow couples the right to proceed with a divorce on a “no fault” basis. The “no fault divorce” is a concept subject to divided opinion as many see this as undermining the sanctity of marriage and making it too easy for people to divorce. On the other hand lots of practitioners feel that this is exactly what family law has been waiting for on the basis that people should not have to suffer a long wait of two years to divorce without blame and force what is already a pressured time become even more traumatic.  Resolution – a national organisation of family lawyers committed to non-confrontational divorce has been pioneering for this change for years and believes that the law needs urgent change given that the existing system has been in place since the 1970’s. Attempts were made by Parliament to bring about no fault divorce in 1996, however, this was never implemented.

A breakthrough report was published on 30 October 2017 by the Nuffield Foundation, which called for an end to fault based divorce within England in Wales. Professor Liz Trinder from the University of Essex led the study entitled “Finding Fault? Divorce Law and Practice in England and Wales”, which is the first of its kind since the 1980’s. The report found that the current system is encouraging people to embellish reasons for divorce including unreasonable behaviour and adultery to enable them to move along with the process more quickly and avoid the two year wait. It also found that the system “increased conflict and suffering” for those separating and their families. As a result it recommended removing the need for any fault and replacing it with a system whereby divorce would be obtainable if one or both parties register that the marriage has broken down irretrievably and that intention is then confirmed by one or both parties after a minimum period of six months.

If the research proves a significant motivator for change then this shall be ground breaking in the area of family law and shall enable divorcing couples to stand a better chance of remaining amicable once the process is over. It will also mean that those couples who do not wish to lay blame can obtain a final financial order in respect of the division of their assets much sooner and not fear the impact of any considerable change in their financial position during the two year wait.

For more information or advice on the divorce process please contact Hannah Nicholls, Family Solicitor on 01562 512479 or e-mail hnicholls@thursfields.co.uk