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Major changes to family law: No Fault Divorce

The Government has recently announced its intention to introduce new legislation which will remove the need for divorce to be fault based.

The current legislation relating to divorce in England & Wales means that anyone seeking to divorce must either rely on a fault based petition, namely unreasonable behaviour, adultery or desertion or, if the married couple agree, a petition based on the parties having been separated for a continuous period of at least two years. If none of these options is available, a couple can divorce once they have been separated for five years, whether or not they both agree.

The blame game

The law as it stands creates a genuine problem for many couples who have simply “drifted apart” in that they may very well have neither the desire nor grounds to blame their spouse for the breakdown of the marriage – yet the prospect of remaining married for at least two years after separation is not only unappealing but may also prevent other issues, particularly of a financial nature, from being properly addressed.  The consequence is that people currently have to face the possibility of attributing blame for the breakdown of the marriage, or being blamed, causing unnecessary ill-feeling which has the potential to make agreeing arrangements relating to any children of the family, or financial issues, a good deal more difficult.

Owens-v-Owens

The need for a change in the legislation was highlighted following the recent case of Mr and Mrs Owens, in which Mrs Owens commenced divorce proceedings after 37 years of marriage, alleging that her husband had behaved unreasonably, and he elected to defend the proceedings.  After many months of contested litigation, the Supreme Court concluded that Mrs Owens had not sufficiently proved that her husband’s unreasonable behaviour had caused the marriage to break down irretrievably and, as a consequence, she must wait until she and her husband have been separated for five years to obtain a divorce. The proposed new legislation would extinguish the difficulties that Mrs Owens has faced in the Family Court.

No fault divorce

The intention behind the proposed new legislation is that people will be able to petition for divorce without alleging fault, reducing the potential for unnecessary acrimony, animosity and bad feeling to be added to what will invariably be an already sad and difficult situation for the separating couple.

What happens now?

Precise details are awaited, although it is not expected that the time taken for obtaining a divorce will be any quicker than at present (currently, around five to six months is the norm for the divorce process).  Furthermore, it is anticipated that the Court will still expect a divorcing couple to agree financial issues before finalising the divorce, and that the Court will retain the ability to prevent a final Decree – dissolving the marriage – from being issued in cases where financial prejudice would be caused to one of the parties as a consequence.

We are hopeful that the new legislation will enable parties to move forward more positively and cooperatively than is the case at present.

A date for the new legislation coming into force has not yet been confirmed, however the Justice Secretary has pledged that no fault divorce will be introduced as soon as parliamentary time becomes available.

Andrew Jackson and No Fault Divorce

Having long and actively campaigned for no fault divorce, we are delighted that the Justice Secretary will finally remove the need for couples to apportion blame during what is already a very difficult period in their lives. If you’re going through a marriage breakdown, our experienced, friendly team is here to help you.

Tel: 01482 325242

email: Richard.hoare@andrewjackson.co.uk

www.andrewjackson.co.uk

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