Time for “no fault” divorce? Not yet….

04/02/2016

The second reading of Richard Bacon’s Private Members Bill proposing a change to existing divorce law has now been postponed until early March 2016.

Current divorce law is a fault based system. The ground for divorce is the “irretrievable breakdown” of the marriage which must be established by reference to one of the facts set down in statute – commonly behaviour or adultery although if a couple have been separated for at least 2 years’ then the separation can be used to establish breakdown. However, a divorce must still be brought by one spouse not by the couple jointly.

The current law stems from the Matrimonial Causes Act 1973 and its predecessors. Society has changed massively over the last 40 years and most of the marriages that end in divorce now were entered into a long time after 1973. The introduction of the Civil Partnership Act in 2004 and more recently the recognition of same sex marriage show how our attitudes to relationships have changed within our modern society (although cohabiting couples are still campaigning for equal recognition). Not surprisingly there have been calls to change how the law deals with the breakdown of those relationships.

The new Bill proposes amendments to the Matrimonial Causes Act 1973 and corresponding amendments to the Civil Partnership Act so that in addition to the existing law, couples can bring a joint petition to the court with a statement from both that the marriage has broken down irretrievably.   The court will need to be satisfied that each party’s statement is entered into freely and independently without undue influence, unlawful threat or coercion. The Bill proposes that a divorce on that basis shall not be made final within 12 months from the court’s initial certification that the marriage has broken down (the “decree nisi”) This is a much longer period than the current 6 weeks and 1 day but perhaps it comes in part to allay fears or criticisms that divorce will become too easy if “no fault” law is introduced.

Divorce should never be entered into lightly but then nor should any cohabiting relationship – marriage or otherwise. Relationships break down for all sorts of reasons and this will have an emotional impact on both parties and any children. The solicitors at Hine will do their best to minimise the impact of the fault based divorce in any petition but perhaps the time has come for the law not to have to add to the distress of the breakdown by having to blame one spouse for it.

 

 

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