The Government has announced that No Fault Divorce is to become Law in England and Wales.
This follows a high profile decision of the senior courts last year that concerned a couple who had had been married for 39 years. The wife based her petition for divorce on her husband’s unreasonable behaviour.
The husband did not accept the marriage had broken down and argued that any difficulties were routine for any marriage. The Judge rejected the wife’s petition. Her allegations were described as ‘exaggerated’ and ‘minor altercations of a kind to be expected in a marriage’.
Current divorce law in England and Wales does not allow one party to unilaterally decide to divorce because they are unhappy in the marriage. Unless the parties have been separated for more than 2 years, one spouse usually has to allege bad behaviour of some kind on the part of their spouse to prove to the court that the marriage is at a permanent end and broken down irretrievably.
As a result of this decision there is a risk that the contents of divorce petitions could return to being more confrontational with a lot of detail, which could result in many more defended petitions and create a highly emotional start to the divorce process which could in turn have implications for the chances of achieving an agreed resolution of the other issues. Such as those concerning children or money - as opposed to a court imposed one.
The decision reignited calls for a reform of divorce law to introduce a no-fault divorce system and the Government launched a consultation process which has recently concluded.
Responses received by the Ministry of Justice showed widespread support for change and earlier this month, the Justice Secretary, David Gauke, told the Times the responses to the consultation were “overwhelmingly in support, which is why I remain as convinced as I have been for the need to reform this particular area”.
Whilst there is no firm timetable, it is expected that the new legislation will be put before Parliament in the Autumn.
In the meantime, although most commentators believe that the current divorce process is archaic and requires reform, but the reality is that the vast majority of divorces are not defended and even if they are they very rarely go to trial. Most divorcing couples and their lawyers take a realistic view and seek to achieve a fair and timely solution in what can be difficult circumstances. Early legal advice can often resolve potential difficulties before they arise and can result in better outcomes for the separating couple and their family.
www.theguardian.com/lifeandstyle/2019/feb/08/no-fault-divorce-to-become-the-law
