The divorce process in England and Wales is currently a fault based divorce system and this can exacerbate conflict between both the Petitioner and the Respondent during the divorce process. Two of the five facts to demonstrate that the marriage has irretrievably broken down are that the Respondent has behaved in such a way that the Petitioner cannot be expected to live with them and that the Respondent has committed adultery. These facts require an element of fault but also mean that people can issue divorce proceedings within two years of marriage breakdown. Therefore, it is encouraging divorcing couples to make false allegations on the divorce papers in the event that they do not wish to wait two years before issuing a two years separation with consent petition.
There are more than 110,000 divorces each year, many of which see the encouragement of conflict and blame. These divorces rely on the Matrimonial Causes Act 1973, which is law that is over 40 years old. However, it appears that the government has no plans to change the existing law on divorce. Earlier this year, the case of Owens v Owens highlighted why a no-fault divorce should perhaps be available. In that case the examples of behaviour as quoted by the wife on the ‘unreasonable behaviour’ petition were not deemed unreasonable enough. The Court of Appeal therefore dismissed the wife’s appeal against the dismissal of her petition for divorce based on her husband’s unreasonable behaviour leaving her ‘trapped in a loveless marriage.’ Resolution, whose core principle is to reduce conflict and resolve matters amicably, has been campaigning to allow people to divorce without blame, asking for legislative change and will continue to do so. Only by implementing a no-fault divorce system do Resolution believe that a situation like this will be prevented from happening again.
No-fault divorce is widely supported by the public and would remove the blame from divorce and thus would help couples work through the difficult process in a dignified way without the need for mud-slinging. Would this be a step towards a divorce process that is more civilised perhaps? It would no doubt provide the opportunity for more of an amicable separation which would certainly help to minimise any disruption of children involved. If couples just grow apart through no fault of either party, surely they should be able to choose to divorce in a dignified manner.
A No Fault Divorce Bill would seek to reform the law so that a divorce could be issued where both parties issue a joint petition in order to satisfy the court that the marriage has broken down irretrievably.
If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at firstname.lastname@example.org.