The legal requirements for a divorce...

It is a comment misconception that following a marriage breakdown, it is possible for one party to issue divorce proceedings simply on the basis that one of both of the parties’ feelings have changed and as such, they no longer wish to remain married.

To the surprise of many, this is not the case under the law in England and Wales. A Petitioner in a divorce can only proceed on the ground that the marriage has broken down irretrievably and to prove that breakdown, one of five facts have to be replied on in support. These facts are as follows:

  • Adultery
  • Unreasonable behaviour
  • Two years’ desertion by the Respondent
  • Two years’ separation and the Respondent’s consent to the divorce
  • Five years’ separation

The first two of these facts are fault-based, whilst the last three relate to a period of separation between the parties. It has long been the view of many that there should not be a requirement either for one party to have been at fault, or for there to have been a long period of separation before divorce proceedings can be commenced, but rather, that there should be the possibility of a ‘no-fault’ divorce.

This is an emerging area and one that is very much a subject for discussion amongst those in the legal profession. Indeed, senior members of the judiciary, together with Resolution (the national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems) have called for the introduction of no-fault divorce. This viewpoint is largely based on the belief that allegations of fault can often cause or increase conflict and that, where there is a situation in which the parties have not been separated for two years but wish to divorce without delay, allegations of fault are made simply as a tool to enable the divorce to proceed, and as such are not genuine or well-founded.

On the other hand, there are those who contend that if a ‘no-fault’ divorce is possible, the perception will be that it is easier to obtain a divorce and the likely result will be an increase in the divorce rate.

The recent Court of Appeal case of Owens v Owens has brought this issue into focus once again. Here, Mrs Owens petitioned for divorce on the fact of her husband’s unreasonable behaviour, however could not proceed as her allegations of unreasonable behaviour were considered ‘flimsy’. Her appeal was dismissed as the Court of Appeal considered that the law had been applied correctly but there was a strong argument that the law no longer reflects modern day realities and that a no-fault divorce was called for.

Moving forward, it is unclear what, if any, changes will be made by the government in this area in the near future. It has been indicated that any proposals for change in the legislation to remove fault from divorce would be looked at along with a general consideration of the further reform that may be required to the family justice system.

For now therefore, in order to proceed with divorce, unless a couple has been living apart for two years, one of them has no option but to apportion some form of blame, be it either adultery or unreasonable behaviour.

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