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Will there ever be such a thing as a no fault divorce?

It has been widely reported in the press that earlier this year the Supreme Court ruled that a wife could not divorce her husband of 40 years after he refused to agree to their divorce being granted.

As the wife could not prove fault, and the husband’s behaviour was not deemed to be “unreasonable”, then as the couple only separated in 2015, which meant that under current law the only other ground open to her to rely upon was for the husband to agree to two years separation (which he would not), then the wife was effectively trapped in an unhappy and loveless marriage until 2020.

Following this ruling, the legislators feel this is a turning-point for a long awaited “shake up” to the current divorce procedure, and discussions are underway.

Pressure has been building for decades for a system of no-fault divorce to prevent many cases like the one above.  The Law Commission recommended such a change in 1990 and many Senior Judges have expressed support for such reforms.  Couples who want to divorce will face a less confrontational process under these proposals as the government seeks to end “the blame game” upon the breakdown of a marriage.

Under the Matrimonial Causes Act 1973, in England and Wales anyone seeking a divorce currently must either prove their partner is at fault through adultery, unreasonable behaviour, desertion, or, after two years of separation if both spouses agree to the divorce. If the divorce is contested and a spouse cannot prove “fault”, then couples have to wait five years before a divorce is granted.

Justice Secretary, David Gauke, has said that his aim was to reduce the resentment and bitterness of citing fault and the apprehension it creates as he launched a public debate on proposals to modernise the legislation governing divorce which has not been changed since 1973.

Gauke said: “Marriage will always be one of our most sacred institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples.”

“That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.”

In essence, the Government is proposing a notification system where, after a defined period, if one spouse still maintains the marriage has irretrievably broken down they will become entitled to a divorce.

It is likely that there will be some who oppose the change and some who fear that such a system will undermine the sanctity of marriage, but many believe it could remove a layer of stress and anxiety from one of life’s most distressing experiences.

If you require any advice in respect of divorce or any family matter then contact the family team here at Willsons on 02476 387821 where are highly experienced solicitors will provide you with robust and sensible advice to assist you in this highly sensitive area of law.  Our solicitors have many years of experience and all of the solicitors in our family team are members of either the Law Society Family Law Panel or the Law Society Children Panel which is an elite panel of specialised solicitors.

Lorraine Phimister

Lorraine Phimister – Family Solicitor & Partner


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