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Family Law Solicitor calls for law reform to allow No Fault Divorce

By Principal Lawyer, Family Law

A recent study has shown that the proportion of Divorcees citing adultery as grounds for divorce has halved over the past 40 years, with unreasonable behaviour now the most common fact to rely on in the irretrievable breakdown of a marriage.

So why have many chosen to fall out of love with adultery? Surprisingly, there is still no such thing in England as a “no-fault” divorce. Unless a husband and wife have been separated for either 2 years (and the other spouse consents) or 5 years, other than relying on the rare fact of desertion, a Petitioner will have to rely on one of the fault based facts; either unreasonable behaviour or adultery. These fault based facts are more likely to unnecessarily add to hostility and animosity between a husband and wife.

It has been suggested that presenting a Divorce Petition based on unreasonable behaviour is seen as more acceptable than basing the irretrievable breakdown of the marriage on the Respondent’s adultery.  Even within the most amicable separation, there are bound to be particulars of unreasonable behaviour which can be cited. Although the Petitioner has to prove that the marriage has broken down due to the Respondent’s unreasonable behaviour, the Courts no longer demand pages and pages of unpleasant examples and accusations; half a dozen less severe particulars will suffice. Lack of affection and intimacy, not making the effort with the in-laws, socialising separately and not contributing to the household chores are all regular examples of unreasonable behaviour I come across. As such, unreasonable behaviour is seen as the closest we have in England to the “no-fault” divorce. Indeed, if a husband and wife are still relatively amicable following the breakdown of their marriage, I encourage them to discuss the drafting of the unreasonable behaviour particulars together in advance, in order that there are no nasty surprises contained within the Petition once it has been issued at Court.

It is not just members of the public who are getting on board; unreasonable behaviour is frequently cited in the celebrity world of Divorce. Cheryl Cole reportedly opted to rely on this fact despite her ex-husband, Ashley Cole allegedly having admitted his infidelity. We are told that Madonna also relied on unreasonable behaviour when she divorced Guy Ritchie.

Unless the Respondent admits the adultery alleged in a Petition, the Petitioner has to prove that it took place which can be very difficult and may result in expensive protracted defended proceedings. It is for this reason that there are far less Petitions based on adultery.

However, in the event there has been an extra-marital relationship and the Respondent is willing to admit to it, I advise my clients that to present a Petition to the Court on the fact of adultery is actually more straightforward and less emotional than the Respondent having to read particulars of his/her unreasonable behaviour. The Co-Respondent does not need to be named and only brief details of the adultery has to be contained within the statement of case.

It has further been suggested that there is a change in attitude towards Divorce; which is apparently now seen as a fact of life and a normal part of many people’s lives. I disagree. As a Family Law Solicitor specialising in Family and Personal Matters when I see my clients actually going through the Divorce process, they certainly do not view it in this manner. Divorce is never “just one of those things” as it can have such a devastating effect on family life. As such, why are spouses having to add to what is already an extremely difficult and emotional situation by using blame in order to prove the irretrievable breakdown of the marriage? It is my view that there needs to be reform in the law in this country to “no fault” divorces. The last attempts to introduce no-fault divorce failed in 1996 but in a world where many countries have already adopted this approach, the question is why are we so far behind?

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