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No Fault Based Divorce

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Why should you have to blame the other party just to prove to the Court that your marriage is over in order to obtain a divorce?

Currently, there is one ground for divorce in England and Wales and that is; the marriage has broken down irretrievably. A person seeking a divorce has to satisfy the Court of one or more of five facts in order to prove this ground. Three of the facts upon which a person can rely are fault-based, namely; adultery, unreasonable behaviour and desertion.

Couples who have amicably reached the decision that their marriage has come to an end are left with the remaining two facts of either relying on the fact of two years separation with the respondent’s consent or five years separation. This gives them no alternative but to wait at least 2 years at the very earliest before they can satisfy the Court that they are entitled to a divorce. If only one spouse believes the marriage has irretrievably broken down they will have to wait 5 years before they can petition for divorce as was the case for Mrs Tini Owens. The Supreme Court unanimously rejected her appeal for a divorce because she could not satisfy any of the facts to prove her marriage had broken down leaving her with no alternative but to wait until 2020 to petition for divorce.

It is therefore no surprise that the most common fact relied upon by divorcing parties is the fact of unreasonable behaviour. As a broad estimate, it can take between 4-6 months to conclude the divorce process (provided it is uncontested). This involves the petitioner having to outline say six/seven examples of the respondent’s unreasonable behaviour during the course of the marriage that the petitioner believes has led to its irretrievable breakdown. This can reduce the chances of an amicable divorce process by the petitioner exacerbating his or her grievances against the other simply so that the divorce can proceed. The animosity experienced at the outset of the divorce process may also have a knock-on effect when it comes to financial and children matters.  An unfortunate situation may be made even worse in order to comply with the process.

This problem could easily be remedied by the No Fault Divorce Bill, which was first introduced to Parliament by MP Richard Bacon in 2015. The Bill was intended to add a sixth fact upon which couples could rely on without proving fault and without going through a lengthy two-year separation.

Since then pressure has been building with many organisations and individuals voicing their support for this change in divorce law including The Law Commission and senior judges such as Lady Baroness Hale. The government is currently proposing a system whereby if after six months either spouse maintains that they believe the marriage has irretrievably broken down they will automatically be entitled to a divorce. Justice Secretary David Gauke is to begin a consultation on introducing “no fault” divorces.

Others may argue that obtaining a divorce so easily could run the risk of opening the floodgates to a surplus of couples divorcing and some may be left wondering whether the sanctity of marriage be destroyed?