After 50 years, the law is finally set to catch up with the practice of no-fault divorce and dispense with the need to assign blame. Family law expert Nigel Winter explains.
As things currently stand, if you are looking to divorce technically you have to rely on demonstrating ‘irretrievable breakdown’, and two of the five key elements carry a degree of blame - adultery and unreasonable behaviour.
Divorce lawyers have long recognised that the ‘blame game’ is extremely unhealthy; it can lead to long term damage within families and undermine attempts to resolve financial settlements and is therefore best avoided. Protocols drawn up and adopted over many years demonstrate that lawyers are committed to avoiding conflict, even in an adversarial system tailored for it.
So avoid blame as far as possible when considering divorce; if your petition is based on ‘unreasonable behaviour’, there just has to be sufficient reason to prove irretrievable breakdown. That balancing act of establishing irretrievable breakdown whilst not offending the other party, is one that lawyers have endeavoured to achieve for many years whilst waiting for Parliament to catch up and introduce no fault divorce.
I was fortunate to be able to discuss the need for reform with Government Whip and Horsham MP, Jeremy Quinn, last summer ahead of the wider consultation that took place in the autumn. That consultation followed several years’ pressure from the legal profession, and we were delighted when Justice Secretary, David Gork, finally confirmed that legislation will be introduced in the next Parliament to remove the need for separating couples to allocate blame for their relationship breaking down.
The drive for no fault divorce has been supported in recent years by the high profile case of Owens v Owens in which the judge agreed with the husband’s defence of an ‘unreasonable behaviour’ divorce petition from the wife, meaning that the couple have now to wait for a full five year separation before they can divorce.
The facts of Owens –v- Owens are rare, and many divorce lawyers will go through their entire career without encountering a single defended divorce; a swift and amicable divorce is possible under the current law, but it depends on both parties demonstrating a degree of goodwill, but the change in the divorce law is long overdue and very welcome.
Should you require any further information, DMH Stallard LLP runs a free Family Law Clinic in its Horsham office. Call 01403 252492 for further information.