Published: 2nd October 2018
Family law organisation Resolution have welcomed the news that the government intend to introduce a no-fault divorce system in England and Wales, following the recent publishing of a government consultation paper on no-fault divorce.
“This is a landmark moment for divorce law in England and Wales. For too long, many divorcing couples have been forced to play the ‘blame game’, needlessly having to assign fault in order to satisfy an outdated legal requirement. If these proposal make their way into law, that will no longer be necessary” former Chair of Resolution, Nigel Shepherd explains.
He later goes on to say “We're pleased the government has listened to us, and [we] look forward to playing a key role in working with Ministers and officials on the detail of these proposed changes. With MPs from all main parties voicing their support for change, I hope that we will soon see reform that will help thousands of couples and parents avoid unnecessary conflict should their marriage or civil partnership sadly come to an end.”
"It is now vital that the many individuals and organisations who have supported our call for change in recent months respond to the government consultation and get firmly behind this reform."
The current basis for divorce within England and Wales comes from the irretrievable break down of a marriage. The petitioner must convince and satisfy the court of one or more of five facts that explain such a breakdown. Three of these facts must be fault based, for example adultery within the marriage, behaviour that reflects negatively on one or both parties or desertion. Two of the facts supplied to the court must relate to extended periods of separation – two years should both parties consent to the divorce and five years in the absence of consent.
It was in 1996 when part 2 of the Family Law Act proposed to introduce ‘no-fault divorce’ into the legal system. The reform suggested that both parties should attend ‘information meetings’ in the hope that such an approach could aid in the reconciliation of a relationship. Regrettably, in 2001 the Government concluded that the proposal was unworkable following a series of pilot schemes.
In 2016, the Owens v Owens lawsuit played a pivotal role in the approach to a no-fault divorce. A Central Family Court judge dismissed Mrs Owens and her plea to secure a decree nisi, despite the fact that the judge found the marriage had irretrievably broken down. In the eyes of the law, Mrs Owens had failed to prove that her husband had behaved in a problematic and unreasonable way throughout their marriage. It is in the wake of this revolutionary case that an increasing number of people have started campaigning for divorce reform in England and Wales.
Further developments surrounding no-fault divorce were seen in 2017, with the Nuffield Foundation report recommending that fault should be removed entirely from divorce law and should instead be replaced with a comprehensive notification system. The report further concluded that the mismatch between divorce law and practice needed to be addressed and laws should be changed to benefit the individual opposed to protecting the idea of ‘the family unit’.
The most notable change comes from the Government’s recent consultation paper that asks for views on replacing the current basis of divorce with a fairer process that is solely based on notification. The consultation, which closes on the 10th December 2018, aims to remove both the ability to allege fault and the ability to contest a divorce. The current grounds for divorce, whether that is extended periods of separation or fault based allegations, cause stress and heartache for both parties as well as any children that may be involved. This reform hopes to revolutionise divorce law, changing the fault-based approach to a more supportive and sensitive one.
David Gauke, Lord Chancellor and Secretary of State for Justice explains that the Owens case generated broader questions about what the law requires of those going through divorce and this can be seen by the rising number of campaigners battling for no-fault divorce. However, those who oppose no-fault divorce fear that should proceedings get easier, divorce rates will soar and this will have a detrimental effect on the family unit.
If you are thinking about separation or divorce and are concerned about your financial situation then K J Smith Solicitors can help. As members of Resolution, our team of family law specialists have handled financial matters in divorces ranging from the straightforward to the highly complex.
For more information or to arrange a free 45-minute consultation, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford), 01494 629000 (Beaconsfield), 01235 375500 (Abingdon) and 01344 513000 (Ascot).
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