‘No-fault divorce’ proposal

Wealth Preservation / 19 October 2018

On 15th September, the Government published a consultation on reforming divorce law.  The proposal is to adjust the legal requirements to bring an end to a marriage that has broken down irretrievably and so remove the concept of ‘fault’.

What is the current law?

There is only one ground for divorce, that the marriage has broken down irretrievably and it is granted on proof of one of five facts (subject to certain conditions):

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years separation with consent
  5. Five years separation (no consent required)

What is being proposed?

The irretrievable breakdown of the marriage will remain the only ground for divorce, but the five facts will be abolished.

The breakdown would be ‘proved’ by notification by one party (or possibly both) to the court.  The court must be satisfied with such breakdown before it will grant the decree nisi and eventually the decree absolute, which will end the marriage.  There is currently no explanation of what is required to ‘satisfy’ the court.

The right to contest or defend the divorce will be removed.

The abolition of the five-year separation fact would also result in the removal of the protection afforded to a vulnerable respondent. Currently, the court can refuse to grant a divorce if it is satisfied that one party will suffer grave financial hardship.

What won’t change? 

Some existing legal requirements will remain:

  1. A divorce cannot be commenced within one year of the date of marriage. (There is no information as to whether there will be exceptions to this rule.)
  2. A minimum waiting time between decree nisi and the application for decree absolute, although the current timescale of 43 days is being reviewed.

What happens now?

Responses to the consultation are required by 10th December 2018.  Details of the consultation and the questions raised can be found here.

This consultation is a significant development and has been sought for some time.

We welcome any comments that our clients may wish to make on the proposed changes.  Please contact us on +44 (0)1733 887675 and we will put you in touch with a member of our family team.

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