A step closer to “no-fault” divorce?

There is a common misconception that parties can separate and divorce on the basis of “irreconcilable differences” which, unfortunately, is untrue under the current law of England and Wales.

The only “faultless” basis for a divorce is where the parties agree to separate and wait for two years and both consent to the divorce.  For some couples, waiting for this period is not a problem, but for many others, it is necessary or desirable for the divorce to proceed straight away.  One spouse may have moved on to a new relationship, and may even want to have children with their new partner, for example.  In those circumstances, the only way for the divorce to proceed is for one spouse to “blame” the other for the divorce by relying on their adultery or unreasonable behaviour.

An adultery petition can be problematic, with the need to prove the adultery unless the respondent is prepared to admit it.  Therefore often a petitioner who does not want to wait two years is faced with only one option: to point the finger at the other spouse (who may, in some cases, not have fully come to terms with the end of the relationship yet) and set out examples of their unreasonable behaviour to show the court that the marriage has broken down irretrievably.  Reading those examples can lead to bitterness and contempt that carries forward into the parties’ relationship for months and years to come.  This is especially troubling in families where there are children, where the parties are going to have to continue to work together to co-parent, even if they do not wish to be married to each other any longer.

Most family practitioners are now very well versed in drafting particulars of behaviour in as low-key and inoffensive a way as possible, whilst still including enough information to persuade a judge that the marriage has, indeed, broken down irretrievably.  Even then, presenting a behaviour petition to a respondent can be incredibly upsetting and antagonistic.  In a period which is often fraught with emotion, anxiety, bitterness and mistrust, it is unhelpful to all concerned that the start of the legal process of separating their lives must be on such hostile terms.  A change in the law to avoid the need to attribute blame for the breakdown of a marriage will undoubtedly help to remove one of the thorny issues from the difficult decisions and times that a family faces during divorce.

On 15 October 2015 a Private Member’s Bill was introduced to Parliament by Richard Bacon, MP for South Norfolk, under the Ten Minute Rule.  The Bill is expected to have its second reading on 4 December 2015.

The description of the Bill states that it “makes provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down.”

There have been many calls by family practitioners over the years for reform in this area of the law, and we wait in anticipation to find out whether this Bill heralds a move towards that change.

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