Government to consult on “No fault divorce”
The government recently announced that they plan to reform current divorce laws for the first time in over 50 years. The current laws in England & Wales can themselves introduce or aggravate conflict due to the need to blame the other party if there has not been a prolonged period of separation. A consultation process is underway to consider the proposed reforms.
Currently, couples must have lived apart for 2 years or more to divorce with consent. If consent is not forthcoming however, couples have to wait until they have been separated for 5 years as demonstrated in the recent case of Owens v Owens, or one party will need to make allegations about their spouses conduct. This is a direct contradiction to the approach encouraged in the wider family justice system, which focuses on helping couples resolve disputes in a non-confrontational way.
The proposals for reform seek to address these issues. It is suggested that the sole ground for divorce be retained, namely that the marriage has irretrievably broken down. It is proposed that the five facts of adultery; unreasonable behaviour; desertion; two years separation with consent; and five years separation, will be replaced by a requirement to provide notice to the Court that the marriage has irretrievably broken down and cannot be saved.
There will be a minimum timeframe for divorce under the new procedure, in order to allow couples the time to reflect upon the decision to divorce, and to make plans for the future. Current proposals suggest that this minimum timeframe will be 6 months. It is not unusual for divorces to take longer than this under existing laws.
Other key elements will be retained, such as the requirement to have been married for one year before a petition can be issued.
The government is proposing to remove the opportunity to contest a divorce, which is what prevented Mrs Owens from obtaining her divorce and thereby leaving her legally trapped in a marriage that was over. In reality, contested divorces are rare. Approximately only 2% of divorces are contested initially, and of those only a handful will proceed all the way to a court hearing. The government does not feel that it serves a purpose to retain this element, and indeed in certain cases the option to contest a divorce can actually offer an abusive spouse the means and opportunity to continue exerting their control and coercion.
The consultation is open until 10th December 2018.
If you require legal advice concerning a divorce please contact our Family team on 01733 882800 or email [email protected].
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