Will we ever have a no-fault Divorce? Is it time to end the blame game? Currently to apply for a divorce one of the following grounds must be satisfied:
- One party has committed adultery and the other party finds it intolerable to live with them.
- One party has behaved in such a way that the other party cannot be expected to live with them. This is also known as unreasonable behaviour.
- One party has left the other party for a period of two years prior to applying for a petition.
- Parties have lived separately for two years immediately before applying for a divorce petition and both parties’ consent. This is known as two years separation with consent
- Parties have lived separately for a continuous five years before applying for a petition.[1]
These grounds require one party to be at fault or for both parties to have lived separately for a continuous period; there is no provision which lets parties divorce on the grounds that they are incompatible or if they have drifted apart and no longer wish to be together.
In Owens v Owens [2018] UKSC 41[2], applicant wife wished to divorce the respondent husband after a long marriage on the grounds of unreasonable behaviour. Respondent husband defended the claim for a divorce as he felt that the marriage was largely successful. Therefore, it was upon the applicant wife to prove that the respondent husband had acted in an unreasonable way which meant that she could no longer be expected to live together. At the first trial, the judge found that the marriage had broken down but the 27 examples of unreasonable behaviour which the applicant wife had provided were deemed as ‘flimsy’ and therefore did not satisfy the requirements for divorce; the application was consequently denied. The applicant wife appealed this decision; her appeal was dismissed by the Court of Appeal and by the Supreme Court. The Supreme Court in their judgement urged Parliament to look at the law in this area for reform.
As the current requirements are archaic, there has been plenty of reform talks in order to address the issue of the fault-based system. A key proposal is to allow parties to divorce on the grounds of just no longer wanting to be together and not wishing the two- or five-year separation route. Instead parties would be able to make a joint application.
Should you wish to find out more information on what grounds of divorce are suitable for your circumstances please do not hesitate to contact our team.
‘The information given on our website and blog is of a general nature and may not be relied upon as legal advice as every case will be different to some extent. We would need information regarding specific circumstances and requirements in order to advise individual clients.’
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