Blame in divorce proceedings to be eradicated

By Will Mercer

Partner – Head of Family

18 April 2019

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Family Law practitioners who have been calling for a change in divorce law will note with optimism the outcome of the Government’s recent public consultation into reform of the divorce law.

David Gauke, the Justice Secretary, has recently announced the Government’s response to a 12 week public consultation entitled Reform of the legal requirements for divorce and significant changes appear to be imminent.

What is the current law?

Currently, those wishing to divorce must show that the marriage has irretrievably broken down by relying on one or more of five facts.  These are;

• unreasonable behaviour;
• adultery;
• desertion;
• that the parties have been separated for two years and the other party consents; and
• that the parties have been separated for five years.

Either the party wishing to divorce must blame the other for the breakdown or show that the parties have either been separated for two years (if the other party agrees) or five years (if the other party does not).  Having to play the blame game if an immediate divorce is preferred often has a negative impact on the parties and their children when tensions are already heightened.

How will the law change?

The changes in the law will include;

• removing the need to show evidence of the other party’s conduct or a period of living apart;
• the option for a joint application and restricting the opportunity for the other party to object to the divorce;
• a minimum timeframe of six months between the petition and the final decree of divorce;
• retaining the bar on divorces within the first year of marriage and retaining the two stage process (decree nisi and decree absolute); and
• modernising the language used in the process.

Legislation to enact the changes will be introduced as soon as parliamentary time allows but, given the current preoccupation of parliament with Brexit, it is unclear when the changes will become law.

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