Breaking up is hard to do

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Divorce is never easy, and the apportioning of blame only adds to the stress. In this blog our Associate Solicitor Katy Moody looks at plans for no-fault divorce and the impact it will have on separating couples.

Divorce laws at present are seen as onerous by most. Not only do parties have to deal with the emotional and practical aspects of separation following a breakdown in their marriage, but they also have to decide who is to “blame” if they wish to divorce immediately. Lord Keen of Elie recently told the House of Lords: “It cannot be right that the law adds to that by incentivising the attribution of fault.”

There is always a reason why a relationship breaks down; it could be due to the actions or behaviour of one (or more likely both) people or it could simply be that a couple just does not love each other anymore.

To divorce immediately, one party must cite either the other person’s adultery or unreasonable behaviour. If none of these facts fit, then the parties must wait for at least two years to start the divorce process with the court.

Whilst many parties may feel that blaming someone for the breakdown of their marriage is cathartic and provides a form of emotional release, it can only lead to an increase in tensions and further emotional trauma. The real concern is for the couple’s children, who did not make the decision for their parents to separate, and nor do they fully understand the implications of such. They may witness the emotional difficulties suffered by their parents and can be subject to a “tug of war” between them.

In such cases where the couple decide they do not love each anymore, they are forced to live in limbo for two years until the law enables them to divorce. A lot can happen during that time and it can exacerbate tensions between the parties.

The Divorce, Dissolution and Separation Bill aims to reduce the animosity between separated couples and to give them the option of divorcing as amicably as possible.

The Bill has been drafted to remove the need to provide a reason behind marriage irretrievably breaking down. The petition must be accompanied by a statement in support, although it has not yet been disclosed what the content of this would entail. On 3 March 2020, the Bill was approved by the House of Lords and will now be passed to the House of Commons to consider. Some initial concerns have been raised as to whether it will reduce animosity between the parties.

One of the proposals to resolve this is to give the parties 20 weeks from the date the petition is presented to the court to reflect and reconsider whether they do believe the marriage has broken down. For this to work, it is reliant upon the Respondent in the proceedings to have been informed of the presentation of the petition to the court. If the Respondent is not told during this period, the proposal is that the court will not allow the petition to continue.  There is, however, the possibility for the person beginning the divorce to inform their spouse of their intention at the end of the 20-week period. This would enable them to continue with the divorce, but it could be said that this will increase animosity between the parties. Having been told of the imminent divorce “out of the blue”, one party could have little time to deal with any emotional trauma which arises.

I anticipate this will be discussed in further detail and a substantive update provided in due course.

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