Proposed changes in the law to end the ‘blame game’ when a marriage comes to an end have recently been announced by the Justice Secretary marking a huge overhaul of the current law, which is close to 50 years old.
What is changing?
Under the present law, if a couple wishes to give formal recognition to the end of their marriage by way of divorce, they must present a petition to the court and prove the marriage has broken down due to one of five ‘facts’. Of those five facts, only two facts can be relied upon to provide an immediate means to bring the marriage to an end, namely that the other party has committed adultery (albeit same sex couples cannot rely on this fact) or that that the other party has behaved in such a way that it would be unreasonable to expect the petitioning party to remain living with them (known colloquially as unreasonable behaviour). If those do not apply, the parties must remain married albeit living separately for a minimum of two years and sometimes a minimum of five years.
The proposed changes will bring an end to this regime. Under the proposed amendments, either party can present a petition based on the fact that the marriage/civil partnership has irretrievably broken down – no blame required.
There has been a growing unease about how divorces take place in England and Wales. Parties are expected to start the process by not only blaming the other, but also stating those allegations, which can often be quite nasty, in writing as a reason why the relationship has broken down. However, once the divorce is underway, the parties are expected to put their differences aside and come up with an amicable way to separate their finances and, importantly, to share the care of their children. The reason for the breakdown of the relationship rarely impacts upon such issues but unfortunately, by the time the parties are attempting to sort their finances and make arrangements for the children, the red mist has already descended making it much harder to settle such matters. Parental conflict is also considered to be damaging to children so the proposed changes are designed to limit the impact that the breakdown of the marriage has on the relationship between parents.
In other cases such as Tini Owen’s divorce saga, a person who is deeply unhappy in their marriage but cannot prove adultery or unreasonable behaviour must remain married until they have been separated from their spouse/civil partner for two years, in the hope the other person will then consent to the divorce, or if they will not consent, they must remain married for five years. Many see tying somebody into a loveless marriage as extremely unfair.
The timescales for implementing this change have yet to be announced and there will no doubt be some debate in Parliament over how it is implemented – should there be a ‘cooling off period’ or a requirement to attend mediation/counselling first for example? However this is a long welcomed change which should avoid some of the animosity divorcing couples currently experience.