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Are we finally heading for "no fault divorce?"
There has been a lot of talk lately regarding “no fault divorce”.
The current law governing divorce in England and Wales is the Matrimonial Causes Act 1973. The law was made at a time when divorce was a completely different deal. There was a certain stigma attached to divorces in the early nineteen seventies and it was a lot more important for fault to be a part of the divorce process for many people. The Matrimonial Causes Act has served England and Wales for some 45 years, during which time public attitude has changed substantially but the law has not………..Yet!
“No fault divorce” operates in other jurisdictions and has been considered periodically in England and Wales. Part 2 of the Family Law Act 1996 made provision for no fault divorce. However, the government believed that this was not workable and the relevant provisions were repealed. In 2015 a Bill was introduced but did not proceed any further.
Under the current law in England and Wales, couples must live apart for a period of two years or more if they wish to divorce or they must make allegations showing that the other party is “at fault”. This can cause further distress and contention in an already difficult situation. If the petitioning spouse does not wish to allege fault then they must wait for a period of two years and obtain the other spouse’s permission to apply for a divorce on this basis. The wait can cause difficulties as a full financial settlement often cannot be finalised, leaving the parties in limbo.
A divorce may currently be defended if the allegations that have been made are disputed. Defending a divorce is rare, however, in the 2016 case of Owens v Owens a Judge refused to grant the petitioner a decree of divorce even though it was accepted that the marriage had broken down. The Judge in this case did not accept that the petitioner had proved that the respondent’s behaviour had been the cause of the breakdown of the marriage. The petitioner would therefore have to rely on the fact that the parties had been separated for a period of two years with the respondent’s consent or wait for a full five years before obtaining a divorce.
Fortunately, “no fault divorce” is once again a hot topic and has been brought to the attention of the government with a view to a change being made in the law. Some senior members of the judiciary, Resolution (the national organisation of family lawyers), the Family Mediation Taskforce and the Times newspaper have lobbied for no fault divorce and Baroness Butler Sloss (formerly president of the High Court Family Division) has introduced a Lords Private Member’s Bill requiring the Lord Chancellor to review the current law. The matter is now in consultation. The government is asking for views as to whether it is now time to remove the ability to allege fault and defend a divorce. This is good news as, sometimes the breakup of a marriage is neither spouse’s fault. It is just a sad fact of life that some marriages just do not work and couples grow apart.
Whilst there are arguments against “no fault divorce”, it is envisaged that measures will be put in place to ensure that divorce is considered carefully before action and to ensure that reconciliation is possible where appropriate
The Government consultation is to close on the 10th December 2018. It is not yet known whether any changes will be made to the law to remove the element of fault from divorce. Watch this space!
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Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.