Justice Secretary David Gauke recently announced the Government’s intention to reform the divorce process following difficulties in the present system which have been highlighted in the much publicised case of Owens v Owens .
The current law is over 40 years’ old, set out in the Matrimonial Causes Act 1973. Under the law, there is one ground for divorce “that the marriage has broken down irretrievably “ but unless you have been separated for more than 2 years, then irretrievable breakdown has to be established by reference to a fault based fact of adultery, behaviour or desertion. (In practice desertion is extremely rare.)
This fault based system has been criticised for causing unnecessary conflict in divorce cases, which in particular can affect the children although the previous attempt to reform the system in 1996, failed.
The new proposals which are out for consultation include:
• Irretrievable breakdown would continue to be the ground for divorce
• There would be a notification process to the court of irretrievable breakdown rather than reliance on fault
• The ability of one spouse to defend or contest the process would be removed
The reforms are intended to ensure that the decision to divorce remains a considered one but that parties are not put through legal requirements that do not serve their interests and can lead to conflict and accordingly poor outcomes for children.
The consultation ends on 10 December 2018. So for the foreseeable future, divorcing couples will still have to proceed under the existing law.
If you are in the situation where you and your spouse have not been separated for at least 2 years then it is particularly important to take legal advice. Despite the current law being predominantly fault based, the vast majority of divorces do proceed undefended and without acrimony over the contents of the divorce petition. Even where divorce has to proceed on a fault basis, solicitors can try to agree a way forward which minimises the impact of the particulars of petition.
At Hine all our Family Solicitors are members of Resolution and are committed to helping the divorce process to proceed as smoothly as possible.
