Posted On / 03.09.2019

Whose fault is it anyway? – time for reform

Divorce law in England and Wales has remained the same for about 50 years and following research from the Nuffield Foundation it was highlighted that the current law fails to establish why the marriage has broken down and, of particular concern, the current system works against any agreement or reconciliation. Having considered the process of divorce in the mid 1990’s the government have now been forced, due to publicity generated by the case of Owens v Owens (contested divorce proceedings which went all the way to the Supreme Court), to look at it once again.

Consultation has taken place and there was an announcement in April this year that the Government would propose legislation to reform the current law and procedure.  

At the moment one spouse has to Petition the other for divorce on the one ground for divorce, that the marriage has broken down irretrievably. The Court can only make this finding if the spouse issuing the proceedings can establish one of the ‘five facts’, three of which are fault based.

The facts are that the other spouse has committed adultery and the Petitioner (the spouse issuing the divorce proceedings) finds it intolerable to live with them; the other spouse has behaved in such a way that the Petitioner cannot reasonably be expected to live with them; the other spouse has deserted the Petitioner for at least two years; the parties have lived apart and both consent; or, the parties have lived apart for at least 5 years.

The proposals for reform are that the sole ground will remain that the marriage has broken down irretrievably but there will be no need to rely on the current ‘five facts’. One or both of the parties will have to send an application to the Court and in it will be a ‘statement of irretrievable breakdown’.

The major change is that the application (no longer a Petition) can be a joint application. This will eliminate the need for ‘blame’ and hopefully start any divorce process off in a conciliatory manner with a view to a cooperative way of dealing with matters, particularly important if the parties have children together.

In addition to that fundamental change there will be no opportunity to defend the proceedings which will do away with (albeit at the moment very rare) contested proceedings which are costly not only in terms of time and money but also in emotion.

The language in documents will be modernised and whilst there will still be a staged process from the start of the proceedings, to decree nisi (to be called conditional order) and then to decree absolute (to be called final order) it is envisaged that the process will be more streamlined and less acrimonious than the current process.

We await the progress of these proposals into law and in the meantime you can contact Lesley Powell in the Family Team at Battens on 01935 846089 or lesley.powell@battens.co.uk who will help steer you through the current procedure, advising you as to the best way forward that is appropriate to your situation.

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