‘Whose fault is it?’ Divorce and the need to find fault

Why are you getting divorced? Whose fault is it? These are the most important opening questions considered at the start of any divorce proceedings.

Currently the only ground for divorce is that the marriage has irretrievably broken down. The petitioner, the side who starts proceedings by issuing the divorce petition, has to satisfy the court of one or more of the five facts.

Three of the facts are fault based: adultery, unreasonable behaviour and desertion. The other two facts relate to separation, either 2 years with consent, or 5 years without.

Therefore, under the current law, it is not possible for parties to get divorced without blame unless they have been separated for 2 years with consent.

This can add to the stress and anxiety of the situation and means that couples who do not want to wait for 2 years to apply for a divorce must find examples of behaviour of blame for unreasonable behaviour or provide details of adultery.

Calls for reform

Many including members of the judiciary, Resolution and the Times Newspaper have called for a change to the current law to include the provision of a no-fault divorce.

In 2015, a Private Members’ Bill was introduced which supported no-fault divorce, however the Bill did not proceed further.

Professor Liz Trinder of Exeter University compiled a Report in October 2017 recommending the removal of fault entirely from divorce law and replacing it with a notification system. Those in favour of a no fault divorce talk of reducing the conflict as at present unless the parties wait for 2 years, they will have to allege fault.

Those who oppose no fault divorce talk of the institution of marriage being supported, of not making it too easy to obtain a divorce and of the negative impact of a family breakdown.

A divorce appeal set to go before the Supreme Court, Owens v Owens, is hoped to provide some clarity on the issue. The case is to challenge the refusal to grant the wife a decree nisi on the grounds of unreasonable behaviour, as such grounds could not be proven, despite the judge finding that she “cannot go on living with the husband.”

The Government has stated it will study the evidence for divorce law reform but would not rush to a conclusion.

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