This week marks an important moment in family law following the 12 week public consultation which showed widespread support for the implementation of no-fault divorce. 71% of those polled agreed that no-fault divorce is urgently needed to protect the long-term interests of children. (Source: Resolution)
MP and Justice Secretary, David Gauke, confirmed that under the new reforms couples will no longer have to prove that their partner is at fault before ending the marriage. The government proposes to remove the ability of a spouse to contest the divorce in court and separated couples will now be able to rely on the irretrievable breakdown of the marriage as the sole ground for divorce without having to make inflammatory allegations. A member of our family team, Elli Crosby, explains what is meant by no-fault divorce.
Currently, fault based divorces have to be based on either adultery or unreasonable behaviour. In 2016, the majority (60%) of divorces in England and Wales were granted on adultery or behaviour. Couples relying on a no-fault divorce would have to wait for a minimum of two years with consent from the other to agree not to defend the divorce, or, five years with no consent from the other spouse required.
The recent changes follow the Supreme Court’s rejection of a woman’s appeal after her husband refused to agree to a split and actively defended the divorce. This meant that, although the couple had been living separate lives since 2015, they had to remain married until 2020 to be able to rely on the relevant ground. Although this case stands out for its rarity because a divorce has been successfully defended, it highlights how difficult the current system can be. You can read more about the Owens Owens case in our article.
This fault-based system can exacerbate animosity between separated couples and may have a damaging impact upon any children involved. The changes, therefore, represent a significant step forward towards reforming our divorce laws and the biggest change we have seen for 50 years. The government’s announcement states that the legislation is to be implemented “as soon as Parliamentary time allows”.