Divorce Law: is it time for reform?

Friday 7th December 2018

Divorce and separation can be a very emotional and difficult time for many couples and their families. The current process for divorce in England and Wales requires the couple to overcome legal requirements before the couple receive the decree absolute.

Is there a need for reform?

In September 2018 a consultation for reforming the legal requirements for divorce was launched by the government. The consultation aims to reform the legal requirements and remove the ‘fault’ based element of the current law. This will make the divorce process one where couples can come to an agreement without the confrontation and blame being put onto one of the parties.

What is the law on divorce?

The ground in which a divorce can be granted in England and Wales can be found under Section One of the Matrimonial Causes Act 1973.

The only ground for divorce is that the marriage has broken down irretrievably. In order for the marriage to have broken down irretrievably, there are five facts, which one or more must be proved. The five facts are as follows:

● The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

● The respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent.

● The respondent has deserted the petitioner for a continuous period of at least two years, immediately preceding the petition for divorce.

● The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the petition and the respondent consents to the divorce being granted.

● The parties have lived apart for a continuous period of at least five years immediately preceding the petition.

The current law only allows for a ‘no-fault’ divorce where the parties have been living apart for two or more years. If this is not the case divorce can only be granted based on the conduct of one of the parties, initiating blame, stress, tension and in some cases hostility. This can impact children of the family and the overall process of the petition. 

The consultation proposes to remove the current approach which requires justification to the court of the reason for the irretrievable breakdown of the marriage and, replace it with a process that requires notification to the court of irretrievable breakdown. The consultation paper is open until 10th December 2018.

Fran Hodgetts

Waldrons Solicitors