Don’t blame me! Time for a modern no-fault divorce?

The recent case of Mr. and Mrs. Owens attracted a huge deal media attention because it involved a court rejecting a divorce – something which does not happen very often. 

The case was this: after a lengthy marriage, the Wife petitioned for divorce based on her husband’s behaviour. The Husband disagreed and believed the couple still had a ‘few years left together to enjoy’. The trial judge refused the divorce concluding that the Wife’s allegations were no more than ‘the kind to be expected in a marriage’. The Wife took her case to the Court of Appeal but was unsuccessful.   

As the law stands parties cannot issue immediate divorce proceedings when they separate, unless they want to blame the other. Should the law be changed?    

In Northern Ireland married couples can divorce after one year on the ground of ‘irretrievable breakdown’. This will need to include at least one of the following;

• adultery
• unreasonable behaviour
• two years desertion
• two years’ separation
• five years’ separation.

As long as the Court is satisfied with the evidence and that the marriage has broken down irretrievably, a ‘decree of divorce’ will follow. In reality, provided the divorce is uncontested, it is unusual for a Court in Northern Ireland to throw a spanner in the works.  

Adultery and behaviour mean that someone is to blame – legally referred to as ‘fault based’ facts. However, separation is ‘non fault based’ i.e. it implies mutually drifting apart or falling out of love.

In the instances of adultery or unreasonable behaviour, a divorce can be triggered immediately because they are ‘fault based’. However you have to wait a minimum of two years after separation before you can activate a non-fault based divorce. Is that fair?

In Northern Ireland, the most common reasons for divorce are two years separation; then five years separation; followed by behaviour. This is hard to explain – maybe the reason is cost, religion, support for the institution of marriage, or a combination of these.

There is an appetite in Northern Ireland for separation agreements entered into voluntarily, without court proceedings that can often be stressful for all involved. Of course this does not apply to everyone; separations can be explosive and unpredictable, but it may be helpful to the many couples who wish to resolve financial issues amicably.

The law commission has been looking to change (or at least review) the law in this area for a number of years, boosted by a significant number of lawyers who see the rationale in making the divorce process simpler. On the opposite side of the spectrum, some are wary of making it too easy. The topic is currently being debated in the House of Commons. 

One proposal suggests that each person signs a declaration that their marriage has broken down but having a cooling off period before applying for decree absolute – which is the decree that finally ends the marriage. This option would only kick in where parties mutually agreed the marriage is over but have not been separated long enough to issue on one of the existing non-fault based reasons.

No two marriages are the same. If both parties agree that there is no prospect of reconciliation, should they be forced to blame the other just to achieve a speedy divorce? 

A YouGov report in 2015 uncovered a worrying statistic: 27% of divorcing couples who asserted blame in their divorce petition admitted the allegations were not true. That cannot be right. There needs to be a better solution.

Thompsons NI Solicitors has a team of family law experts based in Belfast, Northern Ireland. If you need legal support and advice about divorce, contact us on 0800 138 6880.

This is an abridged version of an article authored by Darren McAuley which appeared in May 2017 Edition of Child & Family Law Update Journal.