“It’s wrong – and actually bordering on cruel – to say to couples: if you want to move on with your lives … one of you has to blame the other (…) The blame game needs to end, and it needs to end now.”

By Joanna Jandula, Solicitor in Family law

Nigel Shepherd (newly-appointed Resolution National Chair)

I could not agree more. We all need to pressure for a reform to family law that allows for no fault divorces, especially given that research by Resolution suggests 25% of divorcing couples falsely blame their spouse on the petition in order to complete the separation.

The Background

The need for a no fault divorce traces back as early as 1644 in John Milton’s pamphlet “On the Doctrine and Discipline of Divorce”. It was further demanded in the coda to George’s Farquhar’s 1707 play “The Beaux Stratagem” but it was not until the Matrimonial Causes Act 1857 was introduced that divorce was available to the average person. Prior to 1857, only men were eligible to apply for a divorce and this was subject to acquiring an Act of Parliament. In 1923, the legislation developed to allow the wife to lodge the divorce petition on the grounds of adultery. Further legal development in 1937 introduced a concept of divorce on the grounds of drunkenness, insanity and desertion. In 1969, one further ground was introduced, which was divorce on the basis of two years’ separation with the agreement of the spouse.

How it stands today

In England and Wales there is only one ground for divorce: that the marriage has broken down “irretrievably.”

This must be proven by relying upon 1 of 5 grounds:-

  • That your husband/wife has committed adultery and you find it intolerable to live with them;
  • That your husband/wife has behaved in such a way that you cannot reasonably be expected to live with them;
  • That your husband/wife has deserted you for a continuous period of at least two years;
  • That you and your husband/wife have lived apart for a continuous period of at least two years and your husband/wife consents to the divorce;
  • That you and your husband/wife have lived apart for a continuous period of at least five years.

As you can see, this does not amount to “no fault divorce” as with the exception of (d) two years’ separation and consent, there is an element of fault in all of the five facts.

If you are looking for a quick divorce, option (d) will not be ideal for you, leaving you with just “unreasonable behaviour” to rely on (if you wish to divorce amicably).

Once you can prove to the court that one of these grounds is established, the court will grant an order of decree nisi. It is possible to apply for the decree absolute, no sooner than six weeks and one day from the decree nisi order. The decree absolute ends the marriage.

Most divorces proceed as undefended and in these cases it is not necessary for either party to attend court and everything is done by correspondence.

Hillyer McKeown have experience in all matters relating to the divorce. If you need advice on any aspect of co-habitation, divorce, Children Act proceedings or financial remedy proceedings, please give us a call on 01244 318131 or email [email protected]