No fault divorce...where are we?
The Matrimonial Causes Act 1973 is a key piece of legislation in relation to divorce in England and Wales. It sets out the requirements separating couples must satisfy in order to proceed with a divorce. There is currently only one ground on which parties can apply for divorce and that is the ‘irretrievable breakdown of the marriage’. Parties then have to rely on one of five facts in support, which are set out in section 1 of the Act and are as follows:-
- that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;
- that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition
Unless parties are willing to wait at least two years before commencing proceedings, they are required to rely on either the adultery (if appropriate) or unreasonable behaviour of the respondent when drafting the Divorce Petition. The requirement to rely on one of these ‘fault’ based facts can result in increased animosity between the separating spouses, which can have a negative effect as to how discussions surrounding the resolution of finances or arrangements for any children progress.
Alternatives to this fault based system are being considered – with many of the view that the law needs to be changed to allow for a ‘no fault’ divorce. This would mean that as long as both parties are content to proceed, there would be no need to make allegations based on one parties’ behaviour, or to wait for a period of two years before starting the process. Whilst these discussions are ongoing, there has been no decisions made and for the time being, the Matrimonial Causes Act 1973 remains the key legislation in this area.