Rebecca Silcock, Partner – Family at Mogers Drewett
The UK government is expected to launch a public debate on proposals to introduce ‘no fault divorce’ which would modernise marital separation legislation that has not been changed since 1973.
What is a ‘no fault divorce’?
A ‘no fault divorce’ is where neither party can be blamed for the breakdown of the marriage. At present, under the Matrimonial Causes Act 1973 in England and Wales, divorces are only granted if there is proof of either adultery, desertion or unreasonable behavior. Alternatively, if both sides agree, they can part after two years of living separately. If either party does not agree, the divorce will not be granted until they have been living apart for five years.
The introduction of no fault divorce could mean that no reason for the breakdown of the marriage would be required and the right to contest a divorce could be abolished.
The benefits of reform
For many years, Family lawyers have been calling for no fault divorce and, following the Tini Owens case, demand for reform has been rising. In July, the supreme court ruled that Mrs Owens could not divorce her husband, who had contested her divorce petition, meaning she has to wait until they have been separated for five years. Following the ruling, the Ministry of Justice said: “The current system of divorce creates unnecessary antagonism in an already difficult situation.”
Indeed, the insistence on finding fault and allocating blame can lead to unnecessary resentment and anger between couples, affecting everyone in the family and setting divorce proceedings off on a negative footing. It also means financial resolution is delayed. Introducing a system whereby couples can divorce without one spouse needing to blame the other or having to wait for several years will undoubtedly reduce animosity.