Justice Secretary David Gauke announced last weekend that the government will undertake a consultation on the issue of no fault Divorce.
The issue has had recent interest following the case of Owens v Owens in which the Supreme Court ruled that although Mrs Owens no longer wished to be married to her husband, Mr Owen’s reluctance to the Divorce meant that Ms Owens must remain married to her husband until 2020. The judges in that case urged the government to look at the Divorce system again.
Currently couples going through the Divorce procedure have to show the marriage has broken down irretrievably and prove it by satisfying one of 5 factors; the other party’s adultery, the other party’s behaviour, 2 years’ separation, with the other party’s consent, separation for 5 years without the other party’s consent, or desertion for 2 years.
The effect of the current law means that for couples seeking immediate divorce they have to allege adultery or behaviour against the other. A no fault divorce is only possible after a wait of 2 years and conditional upon the parties living separately for 2 years and the other parties’ agreement. Absence of what should be a fundamental part of our Divorce system leaves many couples with no other choice than to have to wait for 2 years.
The government proposes abolishing the five factors. To commence a divorce either party (or both) give notice to the court of irretrievable breakdown. There would be no right to oppose the Divorce. Decree Nisi is pronounced early and the period for making the Decree Absolute is six months instead of six weeks after Decree Nisi.
There will now be a 12-week consultation period to gauge public response. Under the proposals, spouses would no longer be able to challenge a divorce application made by their partner.
It will be extremely interesting to see the outcome of the Consultation and whether the same leads to the introduction of a no fault basis Divorce in England and Wales.