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“Fault Free” Divorce | A Fresh Idea in Divorce Law

In order to apply for a divorce in England, your marriage must have broken down irretrievably. This needs to be proved by one of five facts. 

Three of these facts are based on periods of separation: two years’ separation by consent, five years’ separation or desertion. The other two grounds are known as the ‘fault-based’ grounds being adultery and unreasonable behaviour.

If you wish to rely on one of the separation grounds it is not always necessary for you and your spouse to have been living in separate houses. You must, however, demonstrate to the court that you have been living separate lives while under the same roof. This requires evidence of domestic arrangements such as sleeping, cooking, shopping and socialising.

A divorce based on two year’s separation requires you both to agree. If your spouse does not consent then you can wait five years and proceed without their agreement.

Most family lawyers and many of those going through a divorce find it very frustrating that if they want to proceed with a divorce before they have been separated for two years then they must rely on one of the ‘fault-based’ grounds which require one or other of the couple to be ‘blamed’ for the breakdown of the marriage. Whatever the reasons for the breakdown, it is not helpful for these to be set out in writing as in some cases it’s the formal written reasons that then become the subject of conflict.

This can often make it harder for other issues such as financial matters to be resolved and can be particularly damaging when a couple have children together. In those circumstances, the couple have got to continue working together for many years to come. Requiring one of them to accept responsibility for the marriage breakdown can make that harder.

In many cases, it can of course simply be a case of a couple having drifted apart. Often both parties feel the other has played a part in the marriage breakdown.

There is a weight of opinion from family lawyers and judiciary for there to be ‘fault-free’ divorce which could be obtained without the need for either party to be blamed. Supporters include Resolution, a national organisation of family solicitors, and leading Family Law Judge, Sir James Munby.

Principal Family Lawyer Vicki McLynn says, “It is very frustrating that if a couple wishes to divorce without waiting a period of at least two years then one of them must in effect take responsibility for the marriage breakdown. This can increase conflict at a time when a couple are trying to move forward.

"This can be particularly damaging when children are involved. Many couples do not want to wait two years before beginning the divorce process as this can mean revisiting an unhappy situation again, opening old wounds. It is also not possible to have a final financial order in respect of a marriage without a divorce which for many is the reason they feel they must proceed with a fault-based divorce.”

In a previous blog, family lawyers discuss Grounds for Divorce and The Law in England and Wales.

If you have any queries about your own situation in your relationship breakdown, speak to the expert family lawyers at Slater and Gordon.

Call us 24/7 for an initial consultation on freephone 0800 916 9055 or contact us online and we will call you.

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