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Archive for the ‘No Fault Divorce’ Category

Grounds for Divorce

In October the proposal for no fault divorce was debated in the House of Commons.

Elianne Edgington

Elianne Edgington

Currently spouses can only divorce on the grounds of unreasonable behaviour or adultery if they do not wish to wait for two years (or more) after separating. Adultery must take place between two partners of the opposite sex (despite the introduction of same sex marriage) and must be no less than a sexual relationship.

Unreasonable behaviour is commonly used when adultery is not relevant, but involves listing out details of the other party’s behaviour in writing – not a pleasant thing for the other spouse to read.

Both grounds can cause unnecessary conflict between parties from the outset, leading to greater problems resolving financial issues, increased costs, stress and a detrimental impact upon children.

Many clients believe (mistakenly) that if the other party is the one at fault in the divorce this will impact upon the financial division or arrangements for children.

Although there is the alternative of waiting for two years and divorcing by mutual consent this necessitates a long delay in fully resolving the financial division so that parties are left without financial security for two years and cannot move on.

The idea of divorce without fault is not new and was even enacted (but never implemented) twenty years ago. Unfortunately there are opponents who believe it could make divorce too easy and in some way undermine marriage. I am in no doubt that the calls for reform should be heard and hope this much needed change will finally be brought into law.

For further information contact Elianne Edgington on 01235 771234 or Elianne.edgington@clmlaw.co.uk

Written by Elianne Edgington

December 1st, 2015 at 12:03 pm

No Fault Divorce !

Q My husband and I have fallen out of love and want to divorce.  We’re still good friends and no-one is to blame so can we agree to a ‘no-fault’ divorce?

A. Suzy Hamshaw, family lawyer, Charles Lucas & Marshall.

Suzy Hamshaw - Divorce Specialist, Family Law Expert and Financial Claims on Divorce

Suzy Hamshaw

Although the concept of ‘no-fault’ divorce was included in Part II of the Family Law Act 1996, that part of the Act was never brought into force and was recently repealed.  It had been intended that couples wishing to divorce should attend an information meeting (with a view to reconciliation being encouraged  where possible and where not, mediation to resolve issues) but if that didn’t change things then after filing a statement of marital breakdown and waiting for a period of reflection, the couple would be granted a divorce.

Despite its intention to promote reconciliation, the Family Law Act actually provoked an outcry that it was undermining the sanctity of marriage and making divorce too easy.

As a result we are, for the time being, left with the Matrimonial Causes Act 1973 which sets out the basis for divorce in England and Wales.  Contrary to common mistaken belief, grounds  for divorce is not ‘irreconcilable differences’ – it is ‘irretrievable breakdown of marriage’.

Irretrievable breakdown of marriage then has to be proved by one of five facts: adultery, unreasonable behaviour, two years separation where both parties consent, five years separation where consent is not necessary and finally, desertion.  So, to an extent I suppose,  we do have     ‘no fault’ divorce because where there is separation of two years or more (subject to consent), no-one needs to take the blame.

For many couples though who have come to the difficult but mutual decision that their marriage is at an end, two years can seem an unnecessary wait.  In those circumstances the only way to go ahead with a divorce sooner is for one party to be proved to be at fault in a petition based on unreasonable behaviour or adultery.  This however can lead to ‘mud slinging,’ moving us further away from, rather than closer to, a conciliatory approach to family law.

Speaking at the annual Resolution conference in Leeds last month, Sir Nicholas Wall, President of the Family Division claimed that divorce is now an “administrative” process rather than judicial and it was no longer important “to demonstrate you were the ‘innocent’  party”.

In practice, I regularly advise clients that (subject to certain exceptions concerning costs and the nature of the allegations of behaviour) it usually does not matter whether they are the petitioner or the respondent.

In a recent Court of Appeal case where the respondent, Susan Rae fought against her husband’s application for decree nisi, Lord Justice Thorpe said much the same thing as Sir Nicolas Wall.  In this case he felt it was counter-productive  that the minutiae of a 20 year marriage had to be raked over in such a painful way because divorce laws meant one spouse or the other must be shown to be at fault.  Mrs Rae was fighting the decree nisi on the basis that her having moved the television aerial, taken the fuse out of the washing machine and thrown away her husband’s food for his packed lunch should not be sufficient to end their marriage.

For further information contact Suzy Hamshaw at Charles Lucas & Marshall’s Newbury office on 01635 521212 or at the Hungerford office on 01488 682506 or e-mail her at suzy.hamshaw@clmlaw.co.uk

Written by Suzy Hamshaw

May 18th, 2012 at 11:11 am