Introduction of no-fault divorce

    Introduction of no-fault divorce

    The law is set to change for divorcing couples. The Justice Secretary, David Gauke, has today confirmed that the government will introduce legislation to reform our, somewhat archaic, fault-based divorce law. Legislation will be introduced, “as soon as parliamentary time is available” (good old Brexit!).

    Many would say “about time too!”.

    What is current UK divorce law?

    At present, anyone wanting a divorce has to demonstrate that the marriage has irretrievably broken down (the only legal ground to obtain a divorce) by proving that one of five facts exists. Three involve waiting until you have lived apart for at least two years, possibly five.

    Anyone seeking a divorce within two years of separating has to prove fault. This is either:

    • their spouse has committed adultery, or
    • their spouse has behaved in such a manner that they cannot reasonably be expected to live with their spouse.
     

    This often causes unnecessary acrimony and expense.

    Read more: What are the grounds for divorce in the UK?

    According to the latest report by the Office for National Statistics, the most common reason for couples divorcing in 2017 was unreasonable behaviour. However, as 68 year old Tini Owens learnt to her cost, proving unreasonable behaviour is not always straightforward. Her husband, Mr Owens, unusually, chose to defend Mrs Owens’ divorce petition.

    In July 2018, the Supreme Court decided that Mrs Owens could not divorce her husband until she had lived apart from him for a five year period (they separated in 2015). This was because she could not demonstrate that her husband’s behaviour was such that, taking into account Mrs Owens’ own particular sensitivities and nature, she could not reasonably be expected to live with Mr Owens.

    Read more: What is unreasonable behaviour in divorce?

    At the time, many family law specialists, having picked themselves up off the floor, expressed concern. Resolution, the organisation of family lawyers committed to taking the heat out of the divorce process, warned of a “divorce crisis”. It called on politicians from all backgrounds to reform what they called, outdated laws. Those calls have now, finally, been heeded, not least to try and ensure divorcing parents do not find their ability to continue to work together for the benefit of their children is jeopardised by a fault-based divorce process.

    Divorce law consultation

    After a 12 week consultation with family lawyers, amongst others, which is said to have demonstrated “overwhelming support for change”, the government has finally confirmed that the law will be reformed.

    Although we still await the detail, and the timetable has yet to be set, we now know that couples seeking a divorce will be able to do so either individually, or together. No one will have to prove fault, or be able to prevent the divorce proceeding. So, Mrs Owens could have her divorce!

    While those seeking a divorce will have to wait at least six months before they can obtain a Decree Absolute - which ends the marriage - the creaking Court system means that many have to wait at least this long now. So there’s unlikely to be any more delay than within the current system - just less acrimony.

    We await with interest the detail but it appears that, at long last, divorcing couples will not now have to prove one of them is to blame, nor can anyone insist that their spouse remains married against their will.

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    [This post was last updated in April 2019]

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