Under existing divorce law in England and Wales in order to be granted a divorce a person must prove that their marriage has irretrievably broken down. In proving this the petitioner must present one of five facts: Adultery; Unreasonable behaviour; Desertion; 2 years separation with consent; or 5 years separation where consent is not required.
This means that parties are faced with the issue of ascribing fault between each other or alternatively enduring extended periods of separation and then dealing with the challenge of consent, making an already stressful decision even harder.
Although the divorce process itself can often be a period of unbearable heartache, it can also be as straight forward as submitting a petition to the Court and waiting by your post box for a response. What often makes the process slow and cumbersome are the additional elements of joint assets, finance and child arrangements.
“But what if everything is agreed and we are separating amicably?…”
There has been a recent ground breaking development! On 15 September, the Justice Secretary David Gauke announced plans to introduce no fault divorce. He profoundly states that “Marriage will always be one of our most sacred institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples”.
The plans set out would remove the need for couples to have been separated or to allege ‘fault’ in the divorce petition. Instead, there would be a new notification process where one, or possibly both parties can notify the court of the intention to divorce.
The proposed changes include: making “The irretrievable breakdown of a marriage” the sole ground for divorce; removing the need to live apart or provide evidence of a partner’s misconduct; a new court notification process that can be triggered by one or both parties; and removing the opportunity for the other spouse to contest the divorce application.
Although the grounds for divorce currently remain the same, there is hope for change. The consultation period runs until 10 December 2018 and we eagerly anticipate significant changes in Divorce Law in the near future.