Latest insights from our experts

Posted 19 September 2018
by Aimee Aspinall

No Fault Divorce

Divorce in black and white

The Government has this week confirmed its intention to move towards a no fault divorce in England and Wales.

Currently it isn’t possible for a couple to get divorced without one party being found to be at fault unless they have been separated for at least two years. For many couples, waiting this length of time to resolve the financial matters arising out of their separation, is not an option. This means that one party must effectively blame the other for the breakdown of the relationship, even in circumstances where the separation has been mutually decided.

The only immediate ways to petition if the parties have not been separated for two or more years are adultery or unreasonable behaviour. Unhelpfully, this results in a much more controversial divorce process however, as members of Resolution, the Tozers’ matrimonial team aims to avoid inflammatory language and a draft of the divorce petition will almost always be sent to the other party or their Solicitor before it is filed at Court, this helps to avoid any nasty surprises.

As the law stands, the only “no fault” divorce options available are by being separated for two or more years. There have been calls to change the law to allow couples to separate without having to apportion blame. Recent ONS figures suggest that unreasonable behaviour has consistently been the most common fact relied upon since the 1970s, with around 51% of wives petitioning for divorce on this basis.

Justice Secretary David Gauke has said, “when a relationship ends it cannot be right that the law creates or increases conflict between divorcing couples”.

Changes to divorce laws have been long campaigned for and this year the case of Owens v Owens in which the Supreme Court ruled that a 68-year-old woman should remain married to her husband against her wishes, brought the issue further into focus.

The Ministry of Justice has set out proposals which are subject to consultation. A new proposed notification process will allow individuals to notify the court of their intention to divorce, while the opportunity for the other spouse to contest it is removed.

Other proposals have also been outlined which include retaining the sole ground for divorce; the irretrievable breakdown of a marriage, and removing the requirement to evidence this by outlining the other spouse’s behaviour or a period of living separate and apart.

The consultation will also gather views on the minimum timeframe for the divorce process between Decree Nisi and Decree Absolute to allow time for the couple to reflect on matters. There is currently a minimum period of 6 weeks and 1 day from the date Decree Nisi is granted before the petitioner’s application for Decree Absolute can be made.

If you have any queries regarding a matter similar to this, then please do not hesitate to get in touch with our experienced team of family law solicitors in Devon on 01392 207020.

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About the author

Aimee Aspinall

Associate of CILEx

Associate of CILEx in the Exeter family team