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Can I have a no-fault divorce?

The simple answer is yes, if you are prepared to wait at least 2 years and your ex-partner agrees to the divorce or 5 years if they don’t agree. However, if you want an immediate divorce then, as the law currently stands, you will have to attribute some blame or fault on the part of your ex-partner.

In this day and age this seems highly unusual and is not in keeping with other countries round the world. It is certainly at odds with a modern family justice system that seeks to be responsive, problem-solving and transparent.

A recent study by the Nuffield Foundation has shown that couples are inventing or exaggerating claims in their divorce petition in order to obtain an immediate divorce and that this can “create or exacerbate unnecessary conflict with damaging consequences for children”. Their solution is to reform divorce law and to create a ‘no fault’ petition where one or both parties could register that the marriage has broken down irretrievably and then one or both parties could confirm the position after a minimum period of six months.

Reforming divorce law has been on the cards for many years. Our current legislation dates back to 1973 when the world was a different place. We now live in a much more modern society but our divorce law remains behind the times. There have been many moves, consultations and studies to reform divorce law over the years and, in fact, in 1996, Parliament did create legislation to deal with this problem. However, it was never put into place because of perceived problems with altering the divorce system.

Once again, this issue has received a lot of press due to the case of Owens v Owens (2017] EWCA Civ 182). Mrs Owens has, so far, been denied her divorce on the basis that her allegations of unreasonable behaviour were not sufficiently strong enough to prove that she could no longer live with her husband. The Judges at the Court of Appeal accept that this leaves her in an unfortunate position and that it is clear that her marriage has irretrievably broken down but that the facts that she is relying on are simply not strong enough. This case is now on its way to the Supreme Court. Of course, if Mr Owens had not chosen to defend the divorce then it is highly likely that Mrs Owens would have been granted her divorce with little investigation into her allegations.

As the law stands at the moment, the Court is required to investigate the allegations raised in the divorce petition as far as it reasonably can. In practice, this is more of a paper exercise and the Court rarely investigate the allegations in the petition unless the Respondent chooses to defend the petition. Defending a divorce is extremely expensive and, even after the recent case of Owens v Owens, is unlikely to succeed.

In reality, it is not necessary nor is it required for divorce petitions to be harsh and upsetting and most lawyers seek to minimise the allegations to avoid unnecessary upset and distress, particularly where children are involved. Where possible, divorce petitions should be agreed beforehand with the other party and in most cases, lawyers recommend that Respondents accept the divorce as a means to an end whilst acknowledging that the particulars or allegations are unfair. Divorces are very stressful and harsh and upsetting allegations at the very start of a case can often lead to unnecessary conflict when trying to resolve financial matters or children matters. It is therefore important to get legal advice early in order to avoid or reduce any harm or conflict.

If you would like any information regarding the divorce process please contact Sam Hulse, Solicitor, Family Law on 01905 721600.

 

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