No Change On No Fault Divorce

8th May 2017

Over 200,000 people get divorced each year and to do so, they have to rely on the Matrimonial Causes Act 1973, which is evidentially an extremely old and out of date piece of legislation. The Matrimonial Causes Act says that you can only get divorced on 1 of 5 grounds, which are :- 

  1. Unreasonable behaviour.
  2. Adultery.
  3. Desertion (rarely used and difficult to prove).
  4. 2 years separation by consent.
  5. 5 years separation without consent.

If you therefore want an immediate divorce, without having to wait 2 years, you have to allege one of the fault based facts of adultery or unreasonable behaviour. It has long been the family lawyers view that this only increases acrimony and tension in what can already be a very fraught situation on the breakdown of a marriage.

Indeed, whilst the Government is trying to encourage people to resolve divorce and children issues by more mediatory methods, such as mediation, collaborative law and roundtable tables, outside of a Court arena, they have been extremely reluctant to address the fact that fault based divorce, can in itself increase hostility.

The primary reason for this, is that successive Governments have considered divorce reform a political hot potato, as they are concerned that they may be seen as promoting quick and easy divorces, rather than family law, at the expense of family values.

The Family Law Act 1996, was a proposed piece of legislation that would have introduced no fault divorce and required parties going through a divorce to attend an information meeting with a view to encouraging reconciliation where possible. This proposed piece of legislation never made it on to the statute books has been on hold by successive Governments.

A leading Supreme Court Judge recently gave an interview on BBC Radio 4, in which he admitted that he and many other Judges were disappointed that the proposed 1996 legislation, which would have eliminated fault base divorce, had failed. Following this, a House of Lords spokesman said that the present Government had no plans to change the existing law on divorce.

The press have recently reported a case where Judge refused a divorce, stating that the alleged unreasonable behaviour of her husband, was not sufficient to establish there was an irretrievable breakdown of marriage. The case had been heavily contested and one has to make the observation that if the wife in this case was prepared to spend what was probably thousands of pounds in trying to obtain a divorce from her husband and was prepared to put herself through contested proceedings, then it is highly unlikely the marriage has not irretrievably broken down. In this case, the wife’s own Barrister told the Court, she was now a wife locked in to loveless marriage.

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