Currently, the Law in England and Wales for a divorce only allows “no fault” to be attributed to either party after a minimum period of two years since separation (the two years separation with consent ground). Other grounds include 5 years separation – no consent required – or desertion. Otherwise, in order to proceed immediately (provided that the parties have been married for at least a year) the Petitioner (the personal applying for a divorce) must rely on one of the “fault” based grounds of either adultery or unreasonable behaviour.
Unfortunately, where “fault” is laid at one party’s door, this can often lead to unnecessary tension between divorcing parties and leads to further animosity which makes matters all the more difficult – when things are of course often very difficult already. Because of this, and because of the now well-known case of Owens v Owens (where the wife failed to obtain a divorce based on her husband’s alleged unreasonable behaviour and in circumstances where he unusually defended the divorce), there has been a lot of talk about whether “no fault” divorce should be introduced into Law in England and Wales.
The Law is currently governed by section 1 of the Matrimonial Causes Act 1973, which confirms that a divorce petition may be presented to the Court by either party to the marriage on the basis that the marriage has broken down irretrievably. The relevant section then goes onto confirm the various grounds as set out above and also states that “On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent”. If the Court is satisfied as to the grounds (and that the marriage has broken down irretrievably then it will grant a decree of divorce.
However the “Divorce, Dissolution and Separation Bill” has now been presented to Parliament.
The proposal is to remove the section 1 of the Matrimonial Causes Act 1973 (as referred to above, this includes reference to the various grounds for a divorce) and replace it with a provision which confirms that
either or both parties to a marriage may apply to the court a “divorce order” which dissolves the marriage on the ground that the marriage has broken down irretrievably. Such an application must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably. It further confirms that “The court dealing with an application …must— (a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and (b) make a divorce order”.
The above means that if the Bill is made into Law at a later date (ex)couples would be able to apply for a divorce, a divorce will not be able to be defended (as was the case in Owens v Owens) and it removes the “fault” based grounds.
In terms of timescales, the Divorce, Dissolution Bill was debated at second reading at the House of Commons on Tuesday 25 June 2019 and has now been referred to a Public Bill Committee, who will sit on 2 July 2019 to go through the report line by line with them reporting their findings subsequently – currently anticipated to be on 4 July 2019.
We await to see what happens!