No Fault Divorce
1st May, 2019
Following a public consultation of family justice professionals and pressure from campaign groups and organisations including Resolution, Justice Secretary David Gauke announced plans to reform the current divorce laws in England and Wales.
Currently, individuals wishing to separate must rely on one of five facts to evidence the irretrievable breakdown of the marriage.
These include three ‘blame’ based facts – adultery, unreasonable behaviour and desertion.
Couples who wish to separate amicably and not apportion blame onto one party must live separate and apart for at least two years before they may petition for divorce (with the other spouses’ consent), or five years in the event of an uncooperative spouse. A report published by the Office of National Statistics on divorce in England and Wales in 2017 revealed that the most commonly used fact was unreasonable behaviour. Between opposite-sex couples, 52% of wives and 37% of husbands relied on unreasonable behaviour. These rates are much higher in same-sex couples.
The new reforms will enable a petition to be supported by a simple statement of irretrievable breakdown, allowing the divorce to progress without the need to apportion blame. There will be no opportunity for the respondent to the petition to contest the divorce. A minimum timeframe of 6 months will also be introduced from the petition stage to the final decree of divorce. This might act as a ‘cooling off period’ to ensure that the right decision is being made. There will also be the option for couples to submit a petition as a joint application, which is a very helpful addition to the current procedure.
Supporters of the reforms welcomed the announcement by Mr Gauke and suggested that introducing the option of ‘no-fault’ divorce would reduce conflict between separating couples, and serve to reduce the impact upon any children of the family.
Richard Barge, head of Family Law at Aaron & Partners commented: “I’m delighted that we are a step closer to reforming our outdated and outmoded divorce laws. These changes are long overdue and ought to have been introduced in the mid-1990s when the government last seriously looked at the legislation. Reducing acrimony at the outset of a case is important so that this does not spill over into sorting out the arrangements for children and the resolution of financial claims”
The reforms are not without their critics, however. Opponents to the reforms have suggested that it will make divorce too easy an option, eroding the sanctity of marriage. In Scotland, where the no-fault divorce was introduced in 2006 there was an initial spike in the number of divorce applications following the change.
There has also been a criticism of the inability of the respondent spouse to challenge the petition. Divorce can be adversarial not only because of the legal process but due to the underlying relationship problems. The opportunity to apportion blame can be a cathartic exercise, and an opportunity for the wronged spouse to express their reasons for the relationship breakdown, as well as apply for their divorce costs to be paid by the respondent.
The reforms are expected to be introduced as soon as the parliamentary timetable allows and parallel legislation is expected to be passed for civil partnerships also.
If you would like more information, please contact Richard today.
Head of Family Law
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