A recent court decision highlighted in the media has served as a timely reminder that we do not have a ‘no fault’ divorce system in England and Wales.
The decision has reignited calls to introduce a without blame divorce system. It is considered that a new procedure, where one or both spouses can give notice that the marriage has broken down irretrievably would align much better with how family lawyers are encouraged to deal with family law matters.
The Government has indicated that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of what further reform may be needed to the family justice system.
Currently, to divorce in England and Wales the person applying for the divorce must be able to show that the marriage has broken down based on one of five facts.
- Adultery;
- Unreasonable behaviour;
- Desertion (for a period of two years);
- Two years separation (with the consent of the other spouse);
- Five years separation (the consent of the other spouse is not required)
The most common facts on which a divorce is based are adultery, unreasonable behaviour and two years separation. The fact of desertion is rarely used.
In both two and five year separation petitions, the Respondent can prevent the divorce being finalised until the Respondent’s financial position following the divorce has been considered by the Court.
In reference to the recent case of Owens v Owens – the couple had been married for 39 years and the wife based her petition for divorce on her husband’s unreasonable behaviour. She included reference to his ‘continued beratement’ of her for an earlier affair within her examples of behaviour within the petition. She stated that this together with other behaviours by her husband toward her made it unreasonable for her to live with him. 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’.
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 then have implications for the chances of achieving an agreed resolution of the other issues as opposed to a court imposed one.
It is for the person seeking the no fault divorce, the petitioner, to prove the unreasonable behaviour and the court has made it clear in previous cases that the person being ‘divorced’ is entitled to oppose the petition and to have the allegations properly proved, to the satisfaction of the court, to a civil standard of the balance of probabilities. However the test is subjective.
All too often when a relationship breaks down and a couple starts to contemplate divorce, fingers start pointing and accusations are made. The law can in fact be seen to encourage this approach, since there have to be grounds for a divorce, most of which assume one party is at fault.
Divorce doesn’t have to be about blame. You can come to an amicable agreement over the ending of the relationship, saving time, money and emotional strain. Most lawyers today look for a constructive resolution to family disputes, adapting a non-confrontational style and will consider the best interests of the whole family.
PGM Solicitors belong to Resolution and abide by its code. Resolution members seek to keep the channels of communication open between couples separating. The aim of a Resolution family lawyer is to try to assist a client to find the best solution for their client and family in the most appropriate, cost efficient and amicable way that they can. This is important, particularly when there are financial issues to be dealt with and where child arrangements need to be agreed.
For further guidance on divorce proceedings, contact our specialist family team on 01792 468684 or email enquiries@pgmsolicitors.co.uk
