No fault divorce?

The decision to start divorce proceedings is often a difficult one to make, and it can potentially be a time of conflict and distress, putting families under huge pressure. Not only will a couple need to resolve the issue of the divorce itself, but often there will be the additional stress and pressure of resolving a financial settlement and arrangements for children.

What is the current process for a divorce?

If one party is to petition for divorce against the other, it is necessary to prove that the marriage has irretrievably broken down. In order to prove this irretrievable breakdown, then one of the following five facts must be relied upon:

  • the adultery of the other party
  • the unreasonable behaviour of the other party
  • two years separation (consent of the other party required)
  • five years separation (no consent of the other party required)
  • two years desertion

What is the issue with the current process?

As will therefore be evident from the above, unless a couple is willing to wait two years until after they separated, then one of them will have to blame the other for the marriage breakdown, even if neither party holds the other responsible, and the separation has been amicable . As many couples do not wish to wait until they have been separated for two years before starting divorce, then one will inevitably have to place blame for the marriage breakdown on the other, potentially causing unnecessary tension and acrimony.

Will there be a reform of the current process?

Although there is call for reform, led by the President of the Supreme Court, Baroness Hale, and supported by Resolution (a national organisation of family lawyers committed to non-confrontational resolution of divorce, separation and other family problems) it does not appear likely that there will be any change in the near future. However, this is clearly one area of family law where the debate for change will continue.

If you would like to discuss divorce or any other family issues then please Contact James Heywood in our Family Department for further information or a quote – 01227 762888 or by email to



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