David Gauke, the Justice Secretary, announced new legislation today to bring the concept of “no-fault divorce” into UK law. This decision came after a government consultation, which received responses that were “overwhelmingly in support” of the change.
To get a divorce in England and Wales, a couple must have been married for at least one year. Under Section 1 of the Matrimonial Causes Act 1973, the only ground for divorce in England and Wales is the irretrievable breakdown of a marriage.
A marriage is considered to have “broken down irretrievably” when one of the five facts below is established. If both partners accept this, then the divorce can go ahead. However, if the fact is denied by one partner, then the courts will have to decide whether the marriage has broken down.
Adultery
To establish adultery, a person must show that their partner had voluntary sexual intercourse with someone of the opposite sex, and that they find it intolerable to live with them.
Unreasonable Behaviour
Unreasonable behaviour is the most frequently used fact. To demonstrate this, a person must show that their partner has acted in a way that means they cannot reasonably be expected to live with them.
Desertion
The fact of desertion can be used where a person’s partner has intentionally and unreasonably deserted them for at least two years continuously, without their agreement.
Two Years’ Separation
This fact can only be used where both partners agree to the divorce. They must have lived apart for at least two years continuously.
Five Years’ Separation
Where a couple have lived separately for at least five years continuously, a divorce can be granted without the agreement of both partners.
No-Fault Divorce
Under the current law, a couple cannot get a divorce unless they state that one party is at fault, or if they separate for at least two years.
If one partner will not agree to a divorce, and the courts decide that they are not at fault, as in the recent case of Owens v Owens, then at least five years’ separation will be needed for a divorce.
However, under a “no-fault divorce”, this may no longer be the case, and a divorce could be granted without relying on unreasonable behaviour, adultery or separation.
If you are currently going through a separation and would like more detailed advice on the divorce process, contact us at Audley Chaucer.
Written by Michael Farr
