‘No-fault’ divorce consultation is a chance to debate wider issues

Carole Brennan Divorce lawyer

Recent news that the government plans to launch a public consultation into the idea of a so-called ‘no fault’ divorce raises some interesting wider questions – not least amongst divorce lawyers.

It is believed that the Ministry of Justice will look at ways to update the current system to effectively make the process less confrontational and allow divorces to be resolved more quickly.

Currently, under the Matrimonial Causes Act 1973, anyone seeking a divorce in England or Wales must either prove their partner is at fault due to adultery, desertion or unreasonable behaviour, or, if both sides agree, they can divorce after two years of separation.

If one of the partners does not consent or there is no evidence of fault, couples must live apart for five years before they can divorce.

The problems with the current legislation have been highlighted this year by the case of Tini Owens, who was told by the Supreme Court that she could not divorce her husband until a period of five years had elapsed, even though they have been living separate lives for three years, because her husband refused to give his consent.

At the centre of the ‘no-fault’ divorce argument is a wider question about society’s attitudes towards divorce and how it easy it should be for couples to end their marriage.

Some will argue that the current grounds are reasonable and that a change in the legislation would simply make it easier to get divorced, thereby diluting the sanctity of marriage. Of course, the recent Owens case highlights cracks in the current system when one party refuses to agree to the other’s request for divorce.

Conversely, others will point out that the law should always reflect the will of society and when somebody’s circumstances or feelings change, there is nothing to be gained from trapping them in a failed or unhappy relationship. As a divorce lawyer, I see many examples of the hurt and acrimony this can cause.

Family lawyers have been discussing this matter for many years.

At one meeting I attended to discuss possible changes to divorce legislation, the most striking outcome was that, of all the current grounds for divorce, it was felt adultery should absolutely remain within the legislation, while the other grounds drew much less fervent support.

It is certain welcome to hear that the government is looking at this issue, though there is a nagging fear that Brexit will occupy so much of their time in the coming months and years that matters such as this will remain unresolved.

One thing is for sure; a public consultation will give people on all sides of the debate a chance to air their views about this important issue and hopefully impact on government thinking.

It is important that people respond if they have strong views. Do we want to make it easier to get out of a marriage or do we want to leave things as they are?

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