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"No pain, no drain" divorce?

Date:15 SEP 2018
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Family law expert, Lawyer

It is official. The Justice Secretary David Gauke has now confirmed that proposals are under way to make the divorce process less confrontational. Justice Secretary David Gauke said:

'Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples. That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.'

The proposals are set out in a government consultation launched on the 15 September 2018, and will apply to marriages and civil partnerships. Further information on the press release can be seen on the government's website.

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It took the case of poor Mrs Owens (Owens v Owens [2018] UKSC 41) to highlight the difficulties with the present system that caused a media frenzy and a panic in people wishing to divorce. Resolution has been campaigning for some time for a '"no fault" divorce system. I was one of their 150 lawyers that lobbied Parliament on the 30 November 2016 to explain to MPs the need for this urgent reform. Not to make it easier to divorce, but to make it less acrimonious.

The present system in England and Wales

The person applying for a divorce is called a petitioner. The other spouse is called a respondent.

A Petition for Divorce is lodged at court stating that the marriage has Irretrievably broken down and explaining why by selecting one of 5 reasons:

  1. Adultery (of the other spouse);

  2. Unreasonable behaviour (of the other spouse and that the respondent 'behaved in such a way that the person applying for a divorce cannot reasonably be expected to live with the respondent');

  3. Desertion (by the other spouse);

  4. Two years separation by consent (consent of the other spouse);

  5. Five years' separation.

The consultation proposals in England and Wales

The government consultation launched on the 15 September 2018 sets out the proposals which include:

  • retaining the sole ground for divorce: the irretrievable breakdown of marriage;
  • removing the need for a spouse to evidence of the other spouse's conduct or a period of living apart;
  • introducing a new notification process where one or possibly both parties, can notify the court of the intention to divorce;·
  • removing the opportunity for the other spouse to contest the divorce application

Going forward

The present system does add conflict, and increases tension and legal costs where parties cannot agree. This can be both an emotional and a financial drain. Where there are children, this can also create additional issues.

If the divorce system is changed, the paperwork will also need to be updated and changed. The recently revamped Petition for Divorce will most probably become much shorter. It is a pity that before making the recent change to this form, the government did not seek to reform the divorce system. This would have saved costs, time and pain.

I would welcome a system where couples are given, free of charge (a) the assistance they seek and need to try to save their marriage by way of for example, counselling such as by attending Relate and, (b) in the event that they both decide that their marriage needs to end, that the process dealing with the paperwork does not cause added conflict, pain and delay.

Hopefully, the present government consultation process that closes on the 10 December 2018 will bring forth welcome changes that will make divorce less acrimonious, but will not undermine the importance of marriage.

The law applicable in this article is that  in England and Wales. While every effort has been made to  ensure the accuracy of the information in this article, it does not constitute  legal advice and cannot be relied upon as such. The writer does not accept any  responsibility for liabilities arising as a result of reliance upon the information given.