The government consultation process for no-fault divorce closed on 10 December 2018. In advance of its outcome, Roger Weller, Family Solicitor at HRJ Foreman Laws Solicitors considers the current divorce process and highlights why a no-fault option would be a positive change to divorce law.
The current divorce process
Under current divorce law set out in the Matrimonial Causes Act 1973, in order to get a divorce you must show that the marriage has irretrievably broken down. This needs to proven by citing one of the 5 legally recognised facts;
- - Adultery
- - Unreasonable Behaviour
- - Desertion
- - 2 Years Separation with Consent
- - 5 Years Separation
This means that someone has to be at fault in the marriage, or the couple has lived apart for either 2 or 5 years. Under the current divorce law, the petitioner starts the divorce procedure by citing the reasons for the marriage breakdown and the respondent responds to this by either agreeing or disagreeing. If the respondent disagrees, the petitioner may need to provide more evidence showing the reasons for divorce. This could be a lengthy process as demonstrated in the much publicised case of Owens v Owens (2018). This ongoing divorce case is highly significant whereby the Supreme Court ruled that Tini Owens, 68, was not able to divorce her husband as a “joyless marriage” is not adequate grounds for divorce if her husband does not agree. The Supreme Court ruled that Tini would not be able to get a Divorce until 2020 when the couple would have been separated for 5 years; she will then be eligible for a divorce without consent. This had led to demands for the current divorce law to be changed.
What would happen in a ‘no fault divorce’?
Introducing ‘no fault divorce’ would change the way couples obtain a divorce in England and Wales. This could avoid the lengthy and confrontational procedures couples face when separating.
Under the ‘no fault divorce’ process the long, drawn out proceedings could be avoided, this is because a couple would be able to formally end their marriage by agreement without either being at fault. This could also avoid the need for waiting for a period of separation to apply for divorce.
Baroness Hale of the Supreme Court has supported ‘no fault divorce’ and believes that by simply stating that the marriage has ended without holding either person at fault, it could ease the difficulties couples face during separation and reduce acrimony.
What do we do in the meantime?
While we wait for the outcomes of the consultation, there are several things a couple should seek out when searching for the best solicitor to support them, during the divorce process.
- - Find a solicitor who is qualified as a collaborative solicitor. A qualified collaborative solicitor can place more emphasis on a ‘roundtable’ approach to resolving matters, helping you to avoid the stress and expense of going to court. All negotiations are conducted in four-way face to face meetings with a view to achieving a fair settlement.
- - Or, alternatively, work with a solicitor that will support you through family mediation. Family mediation is a voluntary and confidential process that helps you to reach decisions and joint solutions through discussion with an independent mediator.
- - Ensure your solicitor follows a professional code of practice such as that outlined by family law solicitors association Resolution.
At HRJ Foreman Laws Solicitors, the Family Law team in Hitchin and Welwyn Garden City, Hertfordshire, can support and advise on these areas, and all other aspects of the divorce process including finances and child arrangements. For legal advice contact the team today. Email firstname.lastname@example.org.
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