New research published this week by the Nuffield Foundation adds to the support for the call for no fault divorce. The report, ‘No Contest’, highlights that fewer than 1% of divorces are defended each year, a sign that there is a shift away from the desire to play the “blame game”.
Currently, in order to obtain a divorce immediately after separation, one party must base their petition on the other party’s unreasonable behaviour or adultery. No fault divorce exists- but on the condition that you are either separated for two years and have the other party’s consent, or are separated for five years. In this time, neither of you would be able to get remarried, and you will both continue to be financially tied together as a married couple.
In many cases, relationships breakdown on mutual terms, and neither party feels it was solely the other person’s behaviour at fault. Many people can be reluctant to rock the boat by accusing their ex-partner of adultery, or compiling a list of why their behaviour was unreasonable.
These reasons do not have to be extreme examples of violence or abuse, but they must be genuine and sufficient to show the court the marriage has irretrievably broken down. The court will not automatically grant a divorce when one party states their spouse has been unreasonable, as shown in the recent case of Owens v Owens. In this case, a husband defended the divorce on the grounds he did not feel the marriage had broken down. The court considered that the wife’s examples of unreasonable behaviour were not strong enough and did not allow the divorce.
Although this outcome is unusual, it highlights the need to ensure your divorce petition is drafted carefully to ensure the court will grant the divorce. The courts continue to encourage petitioners to make divorce as conflict-free as possible, leaving people to tread a fine line between a petition that will add fuel to the fire and cause more conflict, and a petition that is too weak to be considered.
Many family law practitioners have been calling for a change in the law to allow for no-fault divorce. Resolution, an organisation who promote a conciliatory approach to family law, strongly promote no-fault divorce as a way of removing a point of conflict and confrontation in divorce proceedings.
Divorce can be an emotional process, affecting the parties, their children and wider family and friends. The petition is usually the first step in this process and can set the tone for the rest of the proceedings. It is important that you seek legal advice in the early stages, to ensure any proceedings start in the right way. It can be lengthy and expensive to attempt to change a petition or to justify the examples of behaviour if a divorce is defended.
We can advise you on the best grounds for divorce for your circumstances, and talk you through the court requirements for a divorce. All of our family solicitors are members of Resolution and endeavour to ensure that proceedings are as conciliatory as possible where appropriate.