Is it Time for No-Fault Divorces?

There are only certain grounds on which a party to a marriage can ask for a divorce. Adultery is a fairly obvious reason for divorce, and one spouse behaving so unreasonably that the other cannot be expected to live with them is an equally obvious reason. But what about feelings of unhappiness, or parties simply drifting apart? Are they grounds for divorce? As one petitioner found out to her detriment, the answer is no.


In a recently publicised case, Mrs O. asked the court to grant her a divorce based on her husband’s unreasonable behaviour, citing reasons including unhappiness in the marriage and her husband being insensitive to her. Whilst ‘unreasonable behaviour’ is a ground for divorce, the court refused to grant her a divorce in this instance, ruling that her allegations were not sufficient to amount to ‘unreasonable behaviour’: they were merely allegations of the kinds of things commonly found in marriage.

Mrs O. has appealed the judgment and the outcome of the appeal is due shortly. However, if that fails, she will either have to wait (she can seek a divorce in two years if her husband consents to a divorce, or five years if he doesn’t) or she will have to draft a new divorce petition including much harsher allegations of unreasonable behaviour.

This ruling risks creating further tensions for divorcing couples. When drafting ‘unreasonable behaviour’ petitions, clients are often advised to keep the allegations as benign as possible, with the aim to get the petition over the hurdle of unreasonable behaviour without inflaming an already difficult situation further. This is in accordance with the court’s current mantra that divorcing couples should adopt a conciliatory stance and avoid conflict. Sadly, the way the divorce legislation is drafted and the court’s preferred conciliatory approach are polar opposites.

To obtain a divorce without having to wait a number of years, one spouse has to allege that the other is at fault, whether through adultery or unreasonable behaviour. Unless Mrs O.’s appeal is successful, a spouse’s allegations may need to be bulked up further to ensure the petition crosses the threshold of unreasonable behaviour. This will potentially lead to more upset and even greater misgivings in divorces which might otherwise have stood some chance of being handled more amicably. This has a knock-on effect when sorting out the parties’ finances and arrangements for their children. 

Many are pushing for a change in the law to allow for immediate ‘no-fault’ divorces. This may well meet resistance as it could be seen to undermine the status of marriage. However, it seems archaic to force somebody who is deeply unhappy with their marriage to stay married for a further five years or to commit more and more hurtful allegations of fault to paper.  If a party wants to get divorced, he or she will find a way to do achieve it – so why not get rid of the blame game and allow couples with irreconcilably differences to bring their marriage to an end in an amicable manner?