WHAT DIFFERENCE WILL NO FAULT MAKE TO GETTING DIVORCED?

The concept of a parting of the ways in a marriage where neither party is at fault was first accepted as a plausible principle in California USA in 1969 where it was enacted into California’s legal mindset.

This edict will make its way onto the English statute books sometime in the autumn of 2021, although the exact date is still awaited (and by many with bated breath).

Under current laws in England, it is not possible for couples to begin divorce proceedings without apportioning blame to one’s other spouse.

So, what difference will this longed for revolution bring to this somewhat stagnant arena of English matrimonial law since 1973?

This legal new concept in the field of matrimonial law will be applicable in England and Wales. It can be started by either party or the parties can agree to make a joint application for the eventual dissolution of the marriage.

The arrival of ‘No Fault Divorce’ will not change the long- established solitary ground required for the success of a petition for divorce. This precept had been laid down as far back as the Divorce Reform Act in 1969 as “the irretrievable breakdown of the marriage when either party can sue for a divorce if they had been separated for 2 years and both parties consent or after 5 years separation if only one person wishes to be divorced”.

This unassailable principle was restated in section 1(1) of the Matrimonial Causes Act 1973 which provided three more ways of proving that a marriage has irretrievably broken down, and which were added to the evidential grounds of 2 years separation by consent and 5 years separation. Evidence of the adultery of one or other of the party’s and 2 years desertion, more or less speak for themselves.

However, there is also another ground based upon the unreasonable behaviour of one’s spouse has often been treated as the emotive dustbin of section 1 of the 1973 Act. Anything from loud, heavy snoring to the lack of hygiene, the lack of satisfactory social integration by one spouse with the other, and even being a “golf or football widow” has been scraped up in desperation, and been cited as an acceptable reason for applying for a marriage to be dissolved and to be returned to one’s single status.

Yet there were occasions when even the catchment of behaviour has been found to be insufficient to satisfy the irretrievable breakdown requirement. The possible ineffectiveness of the supporting grounds in some cases was finally addressed in the case of Owens v Owens [2018] UKSC41.

Here the Supreme Court rejected the petitioner wife’s appeal against the Court of Appeal decision upholding the first instance decision dismissing the divorce petition that had cited the unreasonable behaviour ground as the supporting reason for the marriage having irretrievably broken down.

However, the court invited Parliament to replace the current law which had in its effect prevented the possibility of a divorce although it was clear from the facts of the case that the marriage had irretrievably broken down. The decision in this case clearly illustrated that there really is no certainty that a divorce can be obtained. There is always that slim chance that a petition will fail to succeed, even when relying upon the all embracing section 1(2).

The proposed new No Fault Divorce regime will replace the current five permissible ways to prove a marriage has broken down. All that will be required is for at least one of the parties to provide a legal statement saying that the marriage has broken down irretrievable. This statement will count as conclusive evidence and cannot be contested.

The expectation is that the advent of the No Fault Divorce will make the process much easier, render more certainty as to outcome and certainly be less acrimonious for the parties.

The importance of this revolution must not be understated, especially when there are more issues than just the divorce itself involved in the process of legal unshackling.

Currently, there is almost always the fallout from any unabashed assault by the Petitioner as set out in the Particulars of a petition which the Respondent needs to wrestle with, unless the Particulars are sanitary and merely state that the couple separated 2 or 5 years ago.

On many occasions the Particulars merely serve to stoke the resulting brutal engagement which follows the wounding of the Respondent party.

Often the unarticulated vengeance of the emotionally wounded is the invisible barrier preventing warring parents from remaining the reasonable and rational individuals they had previously been but who, with almost amnesiac forgetfulness, ignore the reality that it is only the children who really suffer when parents are feuding.

Parents fail to concentrate on which arrangements are in their children’s best interests as they doggedly fight tooth and nail to the bitter end. Virtually their sole and guiding intention is to ensure that their rights as a parent remains the only dominant factor. In many cases they drown their thoughts and behaviour solely on how they may present a direct challenge to the portrayal of them in the divorce proceedings, as either the victim in the relationship or as a failure as a husband or as a wife. Of course, none of this has anything to do with the children

Similarly, the aftertaste left by words set out in the Petition to achieve the end of a marriage, very often spills over into family financial remedy proceedings, acting as a spur to either the wronged or the literally wounded party urging them to keep fighting to the bitter (and often costly) end. Their unrealistic hope being that they will be rewarded with the satisfaction of knowing that they had not “given in” easily.

Therefore, the hope must be that the cut and thrust of an acrimonious divorce will be assuaged sufficiently by the new ‘No Fault Divorce’ regime. Throughout the matrimonial sector, this hope is high. This is despite the sad reason behind the process which the parties must become involved in if they are to achieve the distinction they aim for. But there again, human nature being what it is, only time and precedent will tell.

If you require advice and support on any aspect of relationship breakdown then please contact Kim Charles, Head of Family Law at Meaby & Co LLP. She can be contacted on 020 7 703 5034 or by e-mail kcharles@meaby.co.uk