It has been announced by the Justice Secretary that the government will overhaul divorce laws – which have not changed for 50 years – to remove the element of fault.
Currently, anyone seeking a divorce must either prove their partner is at fault through adultery, desertion or unreasonable behaviour, or, alternatively, if both sides agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years.
The most common reason for divorce in the UK is ‘unreasonable behaviour’. People who want a divorce have to list the ways in which their spouses have behaved unreasonably. Seeing a list of your perceived faults as a reason someone wants to divorce you can be extremely antagonistic, and can lead to long-term damage to relationships between divorcing couples, their children and wider family.
Furthermore, while in the past family lawyers would seek to keep examples of unreasonable behaviour vague and mild, the recent case of Owens v Owens changed this. In this case the Supreme Court held that the examples of unreasonable behaviour provided were not unreasonable enough. Family lawyers have had to learn to tread a fine line between ensuring examples of unreasonable behaviour will persuade a judge to grant a divorce, and attempting not to upset the relationships between the couple further.
Following these changes, which will be made “as soon as parliamentary time allows”, divorcing couples will only have to state that the marriage has broken down irretrievably – not why. A new option will also allow couples to apply for a divorce jointly.
However, the new law will enforce a minimum timeframe of six months from petition stage to decree absolute – the legal document that ends a marriage – meaning that it will still be a very long process.