About time for no-fault divorce

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:

• Adultery
• Unreasonable behaviour
• Two years’ separation with consent
• Five years’ separation without consent
• Desertion

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 exacerbates an already difficult situation.

Plans for change

Resolution, an organisation of 6,500 family lawyers and other professionals in England and Wales, are pressing Government ministers 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.

It is anticipated that a private members bill will be re-introduced in the next session of Parliament in May 2016. Nigel Shepherd, the new Resolution national chair, has reported that a recent Resolution poll found a quarter of all divorcing couples were falsifying blame in their divorce petitions in order to have their petitions approved by the Court. Mr Shepherd went on to say that the current law is bordering on cruel and that couples should not have to blame the other if they want to move on with their lives, a sentiment I would agree with.

What can you do 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 3-6 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.

I 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 Resolutions Code of Conduct.

If you are thinking about divorce or any family law matter please do not hesitate to contact me on 0161 930 5151. The Family and Matrimonial team at Gorvins can advise you as to the likely length of proceedings and the best way to protect your interests on divorce. If you prefer, you can send an email addressed to me at enquiries@gorvins.com.