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Partner and Head of Family Law, Rugby
The proposed new legislation for no fault divorce means that one spouse/civil partner can give the other formal notice that they want a divorce/dissolution, at any time. 6 months later, the divorce is granted, whether the other wants it or not.
Of course, we have had no fault divorce grounds in place since the 1973 Matrimonial Causes Act – 2 years separation, requiring the other party’s consent, or 5 years separation, not requiring the other party’s consent. Why do we need this new no fault ground?
The government’s position has historically been to support marriage and civil partnerships, as statistically, they have the greatest chance of lasting longer than cohabiting relationships, and this has benefits for any children of those relationships. The government has been reluctant to make divorce easier. That is still the case. However, it seems that Parliament has bowed to public pressure, not only following the case of Mr & Mrs Owens (see below), but from lobbying from public interest and family professional groups such as Resolution – First for Family Law.
The concern must be that, after a particularly nasty row, on impulse, one spouse may decide to proceed with a divorce on the no fault ground. However, does this give them or their spouse enough time to adjust to their new status? This was one of the reasons for there being a minimum of 2 years separation under the current law. It enabled both parties to consider the future of the marriage, over a reasonable period.
Of course, Mrs Owens (who issued a divorce petition based on her husband’s unreasonable behaviour, which she tried to keep to a civilised minimum, to avoid undue conflict with Mr Owens) failed when Mr Owens was able to show the court that the behaviour complained of was no more than squabbles, which might be expected between a couple after being married for so many years, would be divorced by now, had she been able to use the no fault ground. Indeed, if the law is passed quickly enough, she may still be able to use it, before the required current 5 years of separation have passed. There are cases where it would be clear to an outsider, that it is fair and understandable for a spouse to be divorced quickly, such as where there has been domestic violence, or serial adultery. However, the majority of divorces are based on other factors which have arisen between the couple over an extended period, which might still be capable of being resolved.
The court always took the view that there was the possibility that a couple may decide to reconcile, even after a decree nisi was pronounced in a divorce, and it was therefore possible to rescind that decree nisi, and dismiss the divorce. However, under the new proposed law, there will be no going back.
The problem is that, once decree absolute, or the final decree, has been granted, that decree cannot be rescinded. Will this produce a huge wave of regret? It seems very likely.