Family breakdown is often a time of conflict and distress. There are potential crises and issues to resolve even if the couple have mutually agreed that their marriage is over.
At present the only ground for divorce is that the marriage has broken down irretrievably. A party must prove this by demonstrating one of five facts set out in section 1(2) of the Matrimonial Causes Act 1973:
- Unreasonable behaviour;
- Desertion (two years);
- Two years’ separation with consent; or
- Five years’ separation.
The most common fact relied on is ‘unreasonable behaviour’ because, in the absence of the other ‘facts’, the parties would otherwise have to wait for two years if both consent before petitioning for divorce.
Where unreasonable behaviour is relied on the party who initiates the divorce petition must list the reasons why the other party’s behaviour has resulted in the irretrievable breakdown of the marriage. This is required even if the parties have simply drifted apart through no fault of their own.
The Law Society’s Family Law Protocol encourages lawyers drafting divorce petitions alleging unreasonable behaviour to include only brief particulars that are sufficient to satisfy the court – they must provide evidence that the applicant is entitled to a divorce but the particulars should be as concise as possible. Lawyers are asked to provide the other party with a draft copy of the petition with a view to agreeing the allegations of behaviour and minimising any conflict between the parties.
July’s decision of the Supreme Court in the case of Owens v Owens  UKSC 41 which involved a (rare) contested divorce, saw the Supreme Court reluctantly accept that the allegations of unreasonable behaviour put forward by the wife were not sufficient to prove that the marriage had irretrievably broken down. She was denied a divorce and faced the prospect of having to rely on 5 years’ separation before she could divorce her husband, because her husband would not agree to the divorce. Resolution’s Chair, Nigel Shepherd, commented: “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”.
The announcement (7th September, 2018) that the Justice Secretary David Gauke plans to launch a consultation on no-fault divorce is welcomed by Family Law in Partnership. The Government’s proposals would apparently retain the single ground for divorce of irretrievable breakdown but would end the requirement for it to be evidenced by one of five facts. Perhaps with a nod to the case of Owens v Owens the proposals would also bring to an end the opportunity for a spouse to contest a divorce and would propose a minimum time frame for a divorce of six months.
As a firm which prides itself on making the family change experience better for all concerned, Family Law in Partnership welcomes the Government’s announcement. We hope that no fault divorce will promote a less confrontational approach to divorce at a time when emotions are inevitably fragile and the temptation to blame is prevalent.
You might also like to read our other recent blogs on no fault divorce:
At Family Law in Partnership we have an award-winning team of specialist family lawyers, mediators, arbitrators and family consultants. Our aim is to make the family change experience better so our clients can successfully move forward with their lives.
We do this by:
- Putting clients at the centre, enabling them to make informed, future-focused choices between options and delivering on them.
- Providing tailor-made solutions within the legal framework.
- Working in conjunction with other professionals for the benefit of each individual client.
Our comprehensive practice covers both traditional and alternative methods of dispute resolution including litigation, solicitor led negotiation, mediation, arbitration and the collaborative approach.
To find our more, please contact any member of our talented team of divorce and family lawyers: E: email@example.com or T: 020 7420 5000.