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The government has recently published proposals to reform the law relating to divorce. If the proposals are implemented then the new law will mean that spouses can divorce without either of them being labelled as being at “fault”. In other words, the era of “no fault” divorce will have finally arrived.
The present law
The law as it is at the moment was made by Parliament nearly 50 years ago, in 1973. Under that law, a divorce can only be granted after one party has issued a petition in which one of the following grounds is stated as the reason the divorce is being sought:
- Adultery
- Behaviour which is so unreasonable the other party cannot be expected to live with it
- Desertion
- Both parties agree to a divorce after being separated for two years
- The parties have lived apart for at least 5 years even if the other party does not agree to a divorce.
In the first three of the above grounds, one party has to prove that the other party is at “fault” and details of the allegation have to be given in the petition. The other two grounds involve considerable delay.
There is no question that the ‘blame’ element in the present system is undesirable because it tends to increase tension and hostility between the parties and undermines security for children.
The new law
It has to be emphasised that the precise terms of the new law have not yet been agreed and nor has draft legislation been published.
However, it is highly likely that the sole basis for divorce will be that one party gives formal notice that the marriage has broken down irretrievably. There will be a court process to formalise the situation but it is yet to be seen how long it will be after that notice is given before a final order dissolving the marriage can be made. The initial thinking was that it will be six months but some commentators are now saying that that period would be too long.
Arrangements for finances and children
It is unlikely that the law relating to the rearrangement of the finances of the parties on divorce or the process for resolving disputes about children will change, at least in the short-term. However, there are many who suggest that wholesale changes to the basis upon which financial arrangements are approached should be made.
Possible effects of the new law
Whilst most informed observers believe that the current law is out of date with modern thinking, particularly the fact that one of the spouses has to be “blamed” for the breakdown of a marriage, there are others who are anxious about the possible effects of a law which makes divorce available on demand and without any reasons being given.
It could be said that merely giving notice that a marriage has broken down, with the other party having no right to object to the divorce, makes the process too easy. The fear for some is that this will have a destabilising effect on marriages and be harmful for the security of children. Critics point out that there is likely to be an increase in the divorce rate as those who at the moment have no grounds to seek a divorce will now be able to break up a marriage even against the will of the other party.
I have expressed before that my personal view is these arguments are antediluvian and unhelpful. It cannot be right that the law should adopt such a patronizing and paternalistic approach towards personal relationships and there is no question that an unhappy marriage can be extremely emotionally damaging not only for the spouses, but crucially for children.
No doubt the conflicting views on this topic will be the subject of close debate and scrutiny as the proposals for the new law proceed through Parliament, and we will keep posts updated when more information is available.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by email or telephone.
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