As the law currently stands, if you wish to get divorced without blaming your significant other you have to wait between 2-5 years to do so. There have been calls by many to change this.
How divorce works
You apply to the court for divorce. If you are the one applying you are referred to as the Petitioner, with your spouse being the Respondent. You will be required to file a divorce petition detailing you and your spouses’ details, the details of the marriage and any children and the grounds for divorce.
There is a single ground for divorce, which is irretrievable break-down of the marriage.
How to prove irretrievable breakdown
This can be done in one of 5 ways.
- Unreasonable Behaviour
- 2 year separation with consent
- 5 year separation without consent
To rely on this ground, there has to be an admission on behalf of the Respondent that they committed adultery, and as a result you find it intolerable to live with him or her. Another condition for using this ground is that you have separated within 6 months of knowledge of your spouse committing adultery.
To rely on this ground, you need to include 5 examples of the Respondent’s behaviour that has led to the irretrievable breakdown of the marriage. You need to include examples that the Respondent has behaved in such a way that you cannot reasonably be expected to live with him or her. If you have remained together 6 months after your spouse has committed adultery, the affair can be contained within the unreasonable behaviour ground.
These are the only two grounds that will let you get divorce without a minimum 2 year waiting period.
2 years’ separation with consent
This ground is exactly what it says on the box. You and your spouse are required to have been separated for 2 years and both consent to the ending of the marriage.
5 years’ separation without consent
Should your spouse not consent to the ending of the marriage, you will be able to apply for a divorce after 5 years of separation and you will not need the consent of your spouse for the marriage to be brought to an end.
The Respondent has deserted you for a period of more than 2 years. Desertion means leaving your spouse without their agreement and without good reason.
The UK based system of non-fault divorce has been thrown into the spotlight, particularly after the well-publicised case of Tini Owens, where Mr Owens defended the divorce. Mrs Owens was denied a divorce as Judge Robin Tolson QC refused her petition last year, ruling that her husband’s constant berating about her infidelity was to be “expected in a marriage”. He concluded that her husband’s behaviour towards her had not been unreasonable and described the farmer’s attitude as “old school”. Her appeals were rejected by both the High Court and the Court of Appeal.
This had led to criticism of the England Wales divorce system with calls by those in high positions for Parliament to change the law. These include those such as Lord Wilson, a Supreme Court judge, Wilson, Lady Hale, another Supreme Court justice , Sir James Munby, president of the family division of the High Court, and those who work in family law.
There have been previous attempts to introduce no-fault based divorce however they have either been repealed shortly after, or failed to make it’s way through Parliament. There has been hesitation on behalf of Parliament to ‘undermine’ the sanctity of marriage by allowing divorce to become an easy solution with no blame allocated.
Some would argue that this is an outdated view, and the concern that this would lead to high divorce rates are unfounded, as those who intend to get a divorce will obtain one through one of the 5 grounds, whether it be unreasonable behaviour or 5 year separation without consent.
Other countries such as America, the Netherlands and Scotland have all introduced no-fault divorce with very little ramifications that seem to concern our Government.
Divorce is never an easy thing to pursue, and the necessity of allocating blame within the current law can potentially aggravate an already emotionally trying process. A National Association of Family Lawyers known was Resolution have been campaigning on the issue for some time, due to seeing the damage of allocating blame in a divorce does to families.
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If you need assistance in relation to any of the issues raised in this blog please call us on 01685 350421 or 01443 450561 or E Mail: Law@jnplegal.org and we will do our very best to provide you with the legal assistance you require.