No Fault Divorce

At present the divorce process in England and Wales is lengthy, costly and unnecessarily bureaucratic. This article focuses in particular on the need for a no fault divorce.

There is currently only one ground for divorce – that the marriage has broken down ‘irretrievably’. This can only be demonstrated by proving one of the facts outlined in the Matrimonial Causes Act 1973 s. 1 (2), which are that the respondent has committed adultery, behaved unreasonably, has deserted the petitioner for a continuous period of at least two years, separation for two years and both consent or separation for five years when the other spouse’s consent is not needed.

With the exception of Section 1 (2) (d) all other grounds for divorce seek to establish an element of fault on one of the parties. Most couples seeking divorce are understandably not content to wait for a period of two years separation to be able to apply for a divorce.

For this reason couples seeking divorce often rely on spurious or anaemic claims of unreasonable behaviour and then either agree to such claims or decide not to dispute them.

This all too often results in proceedings descending from a reasonable discussion between two consenting parties, to a bitter and resentful argument. A District Judge will then have to spend precious judicial time considering whether the unreasonable behaviours cited in the petition amount to sufficient grounds for divorce.

The whole process could be simplified by introducing a central system by which couples who want a no fault divorce and who do not have children could apply. By creating a central system for no fault divorce the process could be made less bureaucratic and much quicker. A single application could be filled in by the parties citing brief reasons for the divorce. This simplification could also go some way to reducing the arguably high fees, currently £410 for the issue of the petition, £95 for amendment and £155 for the application for Decree Nisi and this is before any solicitors fees are added.

Richard Bacon, MP, recently advised that proposed changes are not intended to make divorce “easier” but to give parties the freedom to end their marriage without the acrimony associated with divorce proceedings. A no fault divorce system is some way off but there will certainly be much discussion on the point in the coming years.

Please contact Paul Owen or Matthew Whipp if you would like more information about any aspect of family law.