The government has recently announced that it plans to launch a consultation on permitting “no-fault” divorce. This directly follows the recent case decided by the Supreme Court in which a wife, Mrs Owens, was denied a divorce because she had not proved that her husband had behaved so unreasonably that she could not be expected to continue to live with him.
Under the current law, a divorce can only be granted on the basis of one of five facts: unreasonable behaviour, adultery, desertion, separation for two years with the other spouse’s consent or separation for five years. Mrs Owens’ case was exceptional because her husband objected to the divorce believing their marriage had not broken down irretrievably. As a result of the court’s ruling, she has to wait for five years of separation to pass before she can apply for a divorce.
In the vast majority of cases, the couple agree to divorce. However, what may begin as an amicable split can quickly become acrimonious, as under the current law decisions need to be made about which spouse will apply for a divorce and on what fact. If relying on the other’s “unreasonable behaviour”, specific examples need to be given. Family lawyers do everything possible to deal with these issues sensitively, for example by drafting such examples in anodyne terms and sending a draft to the other spouse for any comments before the divorce process begins. Despite this, for the divorcing couple involved, it is a painful way to start an already difficult process.
Change is now on the horizon. The government will consult on reforming divorce law so that one spouse can give notice to the other that they wish to divorce without having to attribute blame. Then after a period of time, such as six months has passed, if they still feel the same way, they will be entitled to divorce.
This change will allow divorces to proceed with less acrimony which is consistent with Debenhams Ottaway’s commitment to set the right tone for each divorce so that wider issues concerning money and children can hopefully also be resolved constructively.
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