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Reducing conflict on Divorce

Reducing conflict on Divorce

By: Abigail Whelan

Tags: Divorce, Family Law, Separation

Currently, in England and Wales every divorce is based on the fact that a marriage has broken down irretrievably. You must then give one of the following five reasons why that is the case -

  1. Your partner has committed adultery and you find it intolerable to live with them;
  2. Your partner has behaved in such a way that you cannot reasonably be expected to live with them (this is commonly known as “unreasonable behaviour”);
  3. Desertion for a continuous period of at least 2 years (this is rarely used in practice);
  4. You have lived apart for a continuous period of 2 years and your partner consents to a divorce;
  5. You have lived apart for a continuous period of 5 years (consent is not required here).

A lot of people think that you can petition for divorce based on “irreconcilable differences”. However, in England and Wales, at present, that is not the case. Unless you have lived apart for at least 5 years or your partner consents to the divorce, then you must prove “fault” on their part. Of course, marriages can end simply because two people feel that they cannot live together anymore, for a myriad of reasons which may relate to fault on both sides, or fault on neither side.

As a result of this, many divorce petitions contain somewhat artificial examples of “unreasonable behaviour” which are used to get a divorce through the largely administrative court process. Many separating couples find that they have to give examples which are critical of their partner, blaming them for the breakdown of the marriage, even where they would like an amicable divorce. This is done to allow the Court to grant a divorce - but it can make it harder for people to work together when considering the more complex issues which arise on divorce, such as the financial situation and arrangements for children.

The government have produced a consultation paper (Available here ) which outlines suggested changes to the law. There is also a bill making its way through parliament.

The main proposal is to remove the need for “fault” on either side. It is suggested that “irretrievable breakdown” alone should be enough reason for a Court to grant a divorce, removing the need for either party to blame the other by listing reasons why their behaviour has caused the marriage to break down. This would bring divorce law in line with how many relationships work in the 21st century, as often, things simply don’t work out.

The proposals also suggest that there would be the option for a joint petition. At present, one party must petition against the other as I have outlined above. The option to start proceedings alone will remain, however the ability to start divorce proceedings together will reduce conflict in situations where both parties agree that they would like a divorce.  

At present, if your partner starts divorce proceedings against you, you will have the option to defend the divorce. This is rarely done in practice, with around 2% of respondents indicating a desire to defend a divorce and even fewer proceeding to court on that basis. The proposed changes to divorce law would see this option removed - which would be beneficial, particularly in situations where there may be an element of control or abuse, as defending a divorce will inevitably delay the process and increase costs.

It is not clear when the proposed reforms will come into force, or whether they will ever do so. The changes to the law need to be made by parliament, who are currently in the process of debating the bill called the “divorce, dissolution and separation bill”.

The bill is making its way through the House of Commons and will need to pass through the House of Lords before it can receive Royal Assent. This can be a lengthy process but make sure to keep your eye on our blog for updates in relation to changes to Divorce law in England and Wales. 

If you are currently thinking about whether you should start divorce proceedings, your partner has suggested that they would like a divorce or you would simply like some advice about where you stand, get in touch with our family department who will be happy to help.



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