Change in the basis upon which a Divorce can be obtained

The news that no-fault divorce is likely to become law has been welcomed, but while the legislation waits for its place in the parliamentary calendar, where one or both parties wish for there to be a divorce without waiting for a two year separation period to elapse or without waiting for the change in the law they will need to continue to rely on either the other person’s adultery, or the other person’s behaviour.

Although the principle of changing the divorce law
has been approved, no date has yet been given for parliament to debate the
proposed changes. 

Official statistics show that almost half of the divorce petitions between 2016 and 2018 were based on allegations of behaviour. The Ministry of Justice announcement suggests a change to genuine no-fault divorce, and sets out plans for a minimum of a six month time frame from the date of applying for a divorce, until the marriage can be legally dissolved, so that couples have time for reflection before securing a divorce.

At Thompson Smith and Puxon we welcome the proposed abolition of adultery and behaviour as grounds for divorce. It is to be hoped that the changes will reduce the risk of one party feeling that they are being unfairly blamed for the breakdown of a marriage. This feeling of unfairness can undoubtedly have an impact on other aspects of the case such as the financial negotiations and/or the arrangements for the children. It has long been the case that the grounds for divorce will not automatically affect how the court deals with other issues such as finance or children arrangements but any change in the divorce law which helps to reduce the potential for acrimony between the parties is to be welcomed. 

The change in the divorce law will have no impact on the efforts that will be made to resolve any financial or child arrangement issues. As is currently the position, in most cases mediation will continue to be required before a Court Application can be made in connection with the financial and property aspects of the matter, and/or the arrangements for the children, and we will continue to do what we can to help our clients reach a fair and reasonable and practical conclusion with a view to minimising the cost, stress, delay and uncertainty of outcome that are almost inevitable consequences if issues have to be dealt with within contested Court Applications.  In cases where agreement proves to be impossible, the Court process will still be needed but it should, wherever possible, be regarded as the last resort. 

Grounds for divorce under the existing Matrimonial Causes Act 1973 require an applicant to prove that their partner has committed adultery, has been in desertion for two years, or has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent. Alternatively, and only if both parties agree, they can obtain a divorce based on two years separation and consent.  If it is not possible to obtain a divorce on the basis of any of those four facts, then the person who requires the divorce would have to wait until a period of five years separation had elapsed at the end of which time the consent of the other party is not required. 

The proposed changes include:

• The irretrievable breakdown of a marriage to be the sole ground for divorce
• The option of a joint application for divorce, although the option for one party to initiate the process will be retained
• Removing the ability to contest a divorce
• Continuing to have a two-stage legal process, which is known currently as the decree nisi followed by the decree absolute

Introducing a minimum timeframe of six months from the date of presenting the application for divorce until the proceedings are finalised with 20 weeks anticipated from the date of filing for the divorce through to the decree nisi and then six weeks from the decree nisi through to the decree absolute.

The Thompson Smith and Puxon Family and Divorce team advise clients on all aspects of private family law and are able to offer a free initial chat for prospective clients. If you would like to make an appointment or have any questions arising from the matters raised in this article, or any other family law matter, please contact the team on 01206 5744431 or by email at info@tsplegal.com.