‘He Started It’, ‘No, She Started It’ – Moving Away From Fault-Based Divorce

By Adam Dunkley

Associate

As we head into a new year, the Justice Secretary, Robert Buckland QC, has vowed to end fault-based divorces and parties playing the blame game.

Under current legislation, a party wishing to divorce must demonstrate that the marriage has irretrievably broken down for one of five reasons:

  • Adultery
  • Behaviour
  • Desertion
  • Separation for two years with consent
  • Separated for five years

Adultery and behaviour requires the petitioner to blame the other for the breakdown of the marriage. This also provides an evidential burden as the court will not accept that the marriage has broken down without proof. A former spouse is unlikely to want to admit to adultery, and we all remember the Tini Owens case – a wife who was refused a divorce on the grounds of behaviour as her husband had not been unreasonable enough!

This has been the main criticism of family lawyers and judges for years, and has finally led to the Government introducing the Divorce, Dissolution and Separation Bill in 2019. Unfortunately, it could not get through parliament in time before the December general election. It is, however, now back before parliament with the Government promising to bring it into effect as soon as parliament time allows.

If successful, parties will be able to divorce without the evidential burden and general unpleasantness of blaming their spouse for the breakdown of the marriage. Certainly, there will be those who may look forward to pointing their finger at their former spouse, however, in our experience those cases are very rare.

For the vast majority, moving into a no-fault based system presents an easy, amicable (and not to mention, cheaper) way forward and is a welcome development to all legal practitioners.

For more information on the divorce process and to find out how we can help you, please contact our Family Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.