To obtain a divorce, in England and Wales, you need to demonstrate that the marriage has broken down irretrievably. To do this you need to rely on one or more of five facts or situations. These are:
1. Adultery,
2. Unreasonable behaviour,
3. Desertion for a period of two years,
4. Two years separation with consent; and
5. Five years separation.
It is clear from the above that unless a spouse is willing to wait for at least two years (from the date of separation) then he or she must issue a petition based either on unreasonable behaviour or adultery as the reason for the breakdown of the marriage. In both of these cases it is necessary to “sling mud” at the other party as the allegations are fault based.
However, bringing a divorce on either unreasonable behaviour or adultery can increase the division between two already unhappy and estranged parties, creating difficulty for them to communicate on important issues, such as financial or child arrangements. It is argued that fault based divorce is inconsistent with today’s society, especially when the Government is promoting the use of family mediation, during separation and divorce. Parties using family mediation are likely to achieve a greater outcome in an atmosphere devoid of blame, plus it is argued that a fault based divorce no longer has a place in the legal system.
Lord Hale, Britain’s most senior female Judge, recently recommended that blame be taken out of the process, and there are many who share her view. When two adults have come to a conclusion that a divorce is the only option this should really be enough to satisfy a Court. Separation can be a distressing process, so why increase this stress by insisting on one of the parties blaming the other in a Divorce Petition?
'No-Fault' Divorces should become the standard means for couples to separate rather than proving that one party is responsible for the breakdown of the marriage. However, until the law is changed, if you do find yourself in a situation where you are anxious to obtain a divorce quickly, but wish to avoid increasing the level of acrimony between you and your spouse, we can discuss the options available to you. There is an achievable balance between giving a reason amenable to the Court for your divorce without stirring up unnecessary resentment with the allegations being made in your Divorce Petition.
For advice on Divorce and Family Law, please contact our specialist family law team on 0113 320 5000 or by email family@winstonsolicitors.co.uk.
