From September 2017, court forms will be simpler to complete for those wishing to apply for a divorce without using a solicitor. But the changes only apply to the language being used, not the grounds for divorce or the divorce law itself. Family lawyer, Helen Shaw from Tallents Solicitors in Mansfield, looks at the law governing divorce in more detail.
Can I get divorced?
As lawyers, we hear many myths about the grounds for divorce.
At one end of the scale there are those clients who want a divorce based on ‘irreconcilable differences’ and at the other extreme, clients may ask that their divorce is based upon ‘mental cruelty’.
However, neither of these reasons are valid grounds for divorce under English law.
In short, there is only one ground for divorce in English law: that the marriage has broken down irretrievably.
The five facts for divorce
It’s important to understand that proving the marriage has broken down irretrievably must be proved by reference to one of five ‘facts’:
- Unreasonable behaviour
- 2 years’ separation with consent
- 5 years’ separation without consent
Until a couple has been separated for at least two years, the only facts available for a quick divorce are unreasonable behaviour or adultery.
“We no longer love each other; can we have a ‘no fault’ divorce?”
There have been campaigns by lawyers and politicians for the introduction of the ‘no fault’ divorce.
One camp argues that the current divorce law, which forced couples to divorce on the basis of blaming one partner only increases the ill-feeling and bitterness between the couple, impacting on their future relationship and crucially, on any children of the family.
On the other hand, there has been resistance to the introduction of ‘no fault’ divorce by those who say that it would undermine the institution of marriage, by making it too easy to divorce.
Is the current divorce law fit for modern Britain?
Helen explains further:
The recent case Owens v Owens highlights the need for reform of divorce law.
Mrs Owens applied for a divorce from her husband based on his unreasonable behaviour. The behaviour she complained of included a lack of affection and attention, prioritising his work over home commitments and speaking about her critically.
Allegations like this form the basis of many divorce cases and go through the court undefended. The vast majority of divorce cases are undefended and therefore require no proof of the behaviour alleged, and the court does not examine the allegations in detail.
But in this case, Mr Owens defended the divorce, and said the marriage had not broken down, despite the couple leading separate lives.
The court decided that the divorce could not be granted, because Mrs Owens had not proved that her husband had behaved in such a way that she could not reasonably be expected to live with him. The case has now been granted permission to appeal to the Supreme Court with a hearing date yet to be set.
The case arguably shows that divorce law is outdated and in urgent need of change. Clearly the couple’s relationship had broken down and the wife was desperate to bring the marriage to an end and reach a financial settlement that would enable her to move on.
The present government has enough on its hands without worrying about divorce law in the immediate future so we are unlikely to see any major amendments to the law in the next parliament. However, family life in Britain continues to change and family law needs to move with the times and accommodate those changes.
Helen is available at our Mansfield office to help anyone considering divorce. She also attends the free family law drop-in clinic at Tallents Solicitors in Southwell, held on Tuesday evenings, 5-7pm.