Last Updated on 9.6.21 by Nicola Fraser
What is it?
No-fault divorce is a divorce where the dissolution of the marriage does not require one party to show the wrongdoing of the other party.
Why is it needed?
Presently the law of England and Wales provides that there is only one ground for divorce, the irretrievable breakdown of the marriage, which is evidenced by one of five facts as follows:
- Unreasonable behaviour
- Two years’ separation with consent
- Five years’ separation without consent
If a divorcing couple do not wish to wait for two years’ separation and want to finalise financial matters now, then the only facts to rely upon are adultery or unreasonable behaviour, which are ‘fault-based’ because they assume one party is at fault for the breakdown in the marriage. Essentially, the present law encourages parties’ to apportion blame and can exacerbate an already difficult situation.
During a LBC phone-in on this week, one caller told presenter Shelagh Fogarty that he took to tracking his wife in an attempt to blame his wife for the breakdown of the marriage. He told listeners “…Because of this [lack] of no-blame thing, I thought I had to gather evidence“. When asked by the presenter whether a no-fault divorce would have helped, he acknowledged that that a no-fault divorce would have “saved a little bit of aggravation or pain in the beginning“. This is the view shared by many Family Lawyers who believe that by enabling spouses to proceed with a no-fault divorce, this ought to assist in reducing early conflict and should make it easier to reach an amicable agreement in respect of children or financial matters
Plans for change
Resolution, an organisation of over 6,500 family lawyers and other professionals in England and Wales, have campaigned for decades to change the law and introduce no-fault divorce, where two people decide they no longer wish to be married, but do not want to rely on the fault-based facts of adultery or unreasonable behaviour. As a result of much pressure to overhaul the legislation from campaigners and also as a result of the widely reported Supreme Court case of Owens -v- Owens in 2018, the Divorce, Dissolution and Separation Bill gained Royal Assent in June 2020.
When this new Act of Parliament comes into force the law will allow married couples to divorce without assigning blame. Originally the Act was expected to come into force last year but after much delay and uncertainty it was finally announced this week that the Act will come into force on 6 April 2022. The announcement came from the Secretary of State for Justice Chris Philp on 7 June 2021 in response to a Parliamentary question and we are pleased and reassured that we now have some certainty that this much needed reform is on the cards and that the Ministry of Justice and HM Courts and Tribunals Service are taking action in the interim to ensure that the Courts IT/Digital services are ready to administer the new changes when they come into force next year.
What can be done in the meantime?
It is possible to prepare an unreasonable behaviour petition which avoids the ‘mud-slinging’ which many clients’ fear. The test used by the Court is whether a right-thinking person would conclude that you could not reasonably be expected to live with your spouse. For this reason, the range of behaviour which can be cited is extremely wide.
To demonstrate unreasonable behaviour you need to provide the Court with several examples of your spouses’ conduct during the marriage with approximate dates and the affect it has had on you. The examples cited do need to be strong enough for a Judge to agree they warrant a divorce, but the Court will also take into account the cumulative effect of the behaviour, so there may be a long series of minor acts that are not serious individually but taken together are such that you could not be expected to live with your spouse. Examples of behaviour could include your spouse not paying you enough attention, failing to support you in your career/hobbies, having no common interests, drifting apart, irritating habits or a failure to maintain a tidy home. The examples of behaviour will be specific to your circumstances so every petition is different.
If at all possible, we try to ensure when preparing unreasonable behaviour petitions that they are as mild and uncontentious as possible and will always advise client’s if appropriate to send a draft petition to their spouse for their approval before sending the same to the Court, in line with \The Resolution Code of Practice. If you are thinking about divorce or any family law matter please do not hesitate to contact Kerry Lees-Russell, Associate Solicitor in the Matrimonial team via 0161 930 5151 or email firstname.lastname@example.org.
Partner & Head of Family, Family Law