Divorce- Who's fault is it anyway?

At this time, to obtain a divorce, one party, the Petitioner, must show that the marriage has "irretrievably broken down". Unreasonable behaviour is the ground most often used. A recent case, Owens v Owens 2018 showed that the way a marriage is ended legally, needs to change. This was a case where the wife presented a petition based on unreasonable behaviour. The husband disputed this and stated that the marriage had not irretrievably broken down, it was just bad. He stated that the marriage was never emotionally intense and that he had learned to "rub along". The legal definition of unreasonable behaviour is that "the respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent." The Judge Lord Wilson considered older legal authorities which suggested that the behaviour is not what should be unreasonable but "the expectation of continued life together should be unreasonable." It was because of this, that the divorce was not granted.

As a result, the Government came under pressure to change the law guiding the matter of divorce to one of no-fault divorce. There was a consultation period in 2019 and because of this, the Divorce, Dissolution and Separation Act 2020 was produced. It received its Royal Assent on 25th June 2020.

This Act makes the process of Divorce more straight forward. The sole ground of irretrievable breakdown remains, the change is that there is no longer any requirement to establish one of the five grounds.

The new legislation states that either or both parties to a marriage may apply to the court for a divorce order, which dissolves the marriage on the ground that the marriage has irretrievably broken down. An application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably. The court MUST take the statement to be conclusive evidence that the marriage has broken down irretrievably and make a divorce order.

Once a party to the marriage makes the application, they will have to wait 20 weeks from the start of the proceedings and at that point, they then confirm that they still require a divorce. A Conditional Order (now known as a Decree nisi) is then made. Six weeks after this date, the Final Order, (now known as a Decree Absolute) can be applied for and this will end the marriage.

Although expected soon, it is not clear when the new rules will come into force and until that time divorces are continuing under the current system. Lord Chancellor Buckland told MPs that the Act's reforms will not come into effect on Royal Assent because there needs to be time allowed for careful implementation. It was indicated that they were working towards an indicative timetable of implementation in the Autumn of 2021. Watch this space!

At Peace Legal we can help you when you are facing difficulties in your marriage with clear and helpful advice. Please contact Kathy Gale or Rachael Revitt.