Earlier this year the government made clear its intention to introduce no-fault divorce. There was a general consensus among political parties and family lawyers like ourselves that the current system is outdated and in need of reform.

At present couples must prove that one of ‘five facts’ applies to them before they can successfully get a divorce.

So there was widespread disappointment that the proposed Divorce, Dissolution and Separation Bill did not complete its passage through parliament before the recent general election. The What Now For No-Fault Divorce? has encountered delay before, and we await to see whether the bill will be included in the forthcoming Queen’s Speech.

In the meantime, figures from the Office of National Statistics show the number of divorces is at its lowest for half a century.  And while a number of factors are at play, including an administrative backlog, there is a feeling that one reason for the dramatic fall in the divorce rate is that couples are waiting for the introduction of no-fault reform before embarking in the divorce process.

Is it wise to do so?

Current Grounds For Divorce

At present to get a divorce in England and Wales you need to demonstrate that your marriage has broken down for one of five reasons, or ‘facts’. These are:

  • Adultery
  • Unreasonable behaviour, for example physical violence or threatening behaviour
  • Desertion where a spouse has left the family home for more than two years
  • Two years’ separation when both spouses agree to divorce
  • Five years’ separation where there is no agreement between the spouses

The case of Tini Owens highlighted the plight of individuals who want to divorce before five years of separation. In the Owens case the judge originally decided that Mrs. Owens’ evidence of unreasonable behaviour was insufficient to establish that the marriage had irretrievably broken down.

What Are The No-Fault Divorce Proposals?

The following proposals were contained in the bill that was put before the last parliament:

  • To replace the ‘five facts’ mentioned above with the need only to provide a statement to the effect that the marriage has irretrievably broken down
  • To do away with the ability of one spouse to contest the divorce
  • The introduction of joint divorce petitions

Should Couples Wait To Divorce Under No-fault Rules?

No-fault divorce attracted support from so many quarters chiefly because it would simplify divorce and reduce the acrimony that prolonged many cases.

Removing blame from the divorce process will – the argument goes – enable couples to agree issues around finances and children in a less confrontational way. So it’s easy to see why couples may wish to wait for the no-fault reform. However we would sound a note of caution:

One reason cited for the reduction in the number of finalised divorces we mentioned above is the huge administrative backlog that exists in the recently created divorce centres across England and Wales. At present some couples must wait 59 weeks for their divorce to be processed. If a significant proportion of couples postpone their divorces until the no-fault divorce bill becomes law there could be a further increase in that backlog meaning an even longer wait for a divorce.

Reaching Agreement

Under the current system it’s common for many estranged couples to use mediation and other forms of alternative dispute resolution to sort out their differences privately. Current delays and backlogs aside, relying on the family courts to resolve matters inevitably causes even further delay. At Brookman Solicitors we are members of Resolution so we prioritise non-confrontational approaches to settling divorces. Often the use of family lawyers and arms’ length discussions between two sets of solicitors can reduce the personal tension and animosity that is otherwise preventing a settlement.

If you’d like advice on any aspect of divorce and whether you should delay the process in the hope that no-fault reform will be introduced swiftly please call on 44 (0) 20 7430 8470 or contact us online.

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