No Fault Divorce

Law society in favour of no-fault divorce

On 7^th September 2018 it was revealed that justice secretary David Gauke was set to announce a consultation on the implementation of no-fault divorce. This would overhaul the current so-called ‘blame game’ system that has come under increasing scrutiny and criticism since the highly publicised Supreme Court judgement in Owens v Owens earlier this year.

Three months later and the Law Society’s consultation has taken place and the response has backed no-fault divorce with Law Society president Christina Blacklaws saying as follows:

“The current requirement for divorcing couples in England and Wales to allege one of five fault-based facts exacerbates conflict between separating partners. It makes it much harder for separating parents to focus their minds on the needs of their children when making child arrangements.

“Introducing ‘no fault’ divorce would change the way couples obtain a divorce – for the better.”

Along with welcoming a new no-fault divorce system, the consultation have also welcomed the proposal to introduce joint petitions. Such a change could be a useful opportunity for the government to remove legal jargon from the petitions, to ensure that those who cannot afford legal representation can understand the law and complete the document without requiring legal assistance.

What is the current law?

The current law governing the criteria for divorce in England and Wales can be found in Section 1 of the Matrimonial Causes Act 1979.

In order for a court to grant a couple a divorce, a petition for divorce must be presented to the court by either party to the marriage, stating that the marriage has broken down irretrievably. In order for a court to hold that the marriage has so broken down the petitioner for the divorce must satisfy the court that one or more of the following five criteria have been established:

1. That the respondent (the other party) has committed adultery and the petitioner finds it intolerable to live with the respondent;

1. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
2. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petitioner;
3. That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petitioner and the respondent consents to a decree being pronounced; or
4. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Current statistics show that 36% of husbands and 51% of wives petition for divorce on the basis of ground 2; namely that their spouse had acted in such a manner that they could no longer be expected to live with them. This ground of unreasonable behaviour has been the most common ground cited for divorce by petitioning Husbands since 2006.

The future

It remains to be seen when parliament will take the necessary steps to implement a system of no-fault divorce. However, what is clear is that the current process can have a destructive impact on families; can promote conflict/acrimony between the parties; can have a detrimental impact on children involved and ultimately results in increased costs. Therefore although it may take time for the change to happen, it is definitely a change that will be widely supported by family lawyers across England and Wales.