Is it time for “no fault” divorce law?


Getting a divorce is unlikely ever to be a pleasant experience, but a good family lawyer will try, wherever possible, to lessen the pain and acrimony. To obtain a divorce there must still be fault unless both sides are willing to wait two years. Despite what the press report, there is no such thing as a “quickie divorce”.

A no fault divorce bill has been proceeding slowly through Parliament through a Private Member’s bill with the support of the majority of family lawyers.

To obtain a divorce in England a marriage must have broken down irretrievably and one of five statutory grounds must be satisfied. The most frequently cited grounds are adultery and unreasonable behaviour. It is good practice to send a draft petition to the other side before issue. With a petition based on unreasonable behaviour this gives an opportunity for contentious allegations to be amended or watered down to lessen the chances of a divorce petition being defended. The Courts are used to seeing behaviour petitions presented on fairly mild grounds and are content to allow a divorce to go through even though the allegations do not appear to be that serious.

When the press refer to a quickie divorce, they mean an adultery or unreasonable behaviour petition that has not been defended.

The other grounds for divorce include separation for at least two years as long as both sides consent to the divorce, desertion for at least two years, or five years’ separation without consent. Not surprisingly, many people are unwilling to wait two or five years to get divorced so adultery and unreasonable behaviour petitions are the most common.

The Private Member’s bill proposes that if both sides agree that their marriage has broken down irretrievably for them to be entitled to a divorce without having to set out any grounds. This will save the pain of attributing blame in the divorce petition and make the whole process a little more dignified. It will also save time and expense.

However, many such bills fall by the wayside either because of lack of parliamentary time or political interest. Divorce is nowhere near the top of the political agenda as politicians fear that if they support a reform of divorce law to make divorce a little easier then they may be accused of undermining marriage. This is even though over 40% of all marriages in England and Wales end in divorce and divorce is never a step that is taken lightly.


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