No Fault Divorce

By Paul Hunt at 00:00

The idea of no-fault divorce has been simmering for a long time. It was originally introduced in the 1990s as part of the Family Law Act 1996 but never made it into practice and that part of the Act was later appealed.


There has been campaigning consistently over a number of years to bring in something along the same lines but it seems that the case of Mr & Mrs Owens that was widely reported last year seems to have focused minds upon this issue.


It would be recalled that this was a defended divorce (a fairly unusual event and Mrs Owens was unable to persuade the court that her “unreasonable behaviour” particulars were sufficient to justify a decree being granted. Her only option, therefore, was to wait until there had been a full period of 5 years separation and then issue a new divorce petition based on that.


Law in relation to the basis for divorce has been in place for at least 1973, so arguably a change was very much overdue. It is expected that the new divorce process will not require people to shoehorn their marriage breakdown details into one of the five currently available categories but to simply provide a statement of marital breakdown.


It is also expected that although it has been described as “divorce on demand” there will still be a time factor involved and certainly built in waiting periods before a final decree is pronounced.


The advantage of no-fault divorce system means that it is not necessary to start putting together allegations which cause disruption and acrimony and which runs counter to the efforts that are often made on children and finance issues to encourage co-operation. To a large extent, the current law is something of an unhappy combination of consensual divorce after a specified period while also leaning to the view that a divorce must somehow be earned on moral grounds by proving the fault of the other party.


The State does not need to look into the details of why people no longer wish to be married any more than it has to inquire into why they would wish to marry in the first place.


It is important to bear in mind that what is proposed will only affect the mechanism of how the marriage itself is dissolved. It is not expected that the law relating to the division of property and finances on divorce will be changed as a result and disputes in relation to the care of children are in any event dealt with under separate proceedings under the Children Act 1989 and whether the parents are married or not.


Something very significant is that there will no longer be an option for defending divorce proceedings. Defended divorces are very rare anyway but when they do occur they can only serve to increase bitterness, frustration and expense.

 

It will also be interesting to see what happens with the claim for costs against the other party. At present, it is almost an inevitability that the person on the receiving end of the divorce proceedings if based upon fault (adultery, desertion or unreasonable behaviour) will be required as the ‘loser’ to pay the Petitioner’s legal costs.


If divorce is not based upon fault then can any cost order logically be made against the other party? Again, this is an issue which frequently serves as a distraction and raises the temperature, its departure from the scene would be welcome.

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Paul Hunt

Paul Hunt , Senior Associate

As a senior solicitor Paul is responsible for cases involving divorce or separation, children, financial and property issues and domestic violence.

He is member of Resolution panel for private children law, ancillary relief and domestic violence. Paul is also trained in Collaborative Law.

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