Streamlined Divorce v Promotion of Marriage

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As most people will perhaps be aware, there is currently one ground for a divorce, that being  that the marriage has irretrievably broken down.  Under the current divorce law in England and Wales, a person must prove this in Court via the divorce petition using one of five facts, specifically adultery, unreasonable behaviour, two years separation with consent, five years separation without consent and desertion. If the above grounds are agreed and the Court deems that there are no reasons why there cannot be a divorce, including having established that any children are adequately provided for, a Decree Nisi is issued following which a Decree Absolute can then be granted which legally ends the marriage.

The most senior family Judge, President of the High Courts Family Division, Sir Nicholas Wall, recently addressed the annual Resolution conference on this topic.  Sir Nicholas has proposed and indeed has long campaigned for a no fault divorce.  In his speech to Resolution members, Sir Nicholas stated that he was ‘a strong believer in marriage but saw no good arguments against a no fault divorce’.

Previously, in the 19th Century and for much of the 20th Century, divorce was a matter of social status.  It did of course, used to matter whether or not a person was divorced and if there was a divorce, it was important to demonstrate that you were the innocent party.  Sir Nicholas Wall now believes that this stigma has gone and indeed, as early as 1996, he was sat on the Whitehall Advisory Group recommending no fault divorces being incorporated in to the Family Law Act.  Opponents at the time, stated that it allowed couples to break up too easily and plans to introduce a no fault divorce were subsequently scrapped.

Following Sir Nicholas’ speech a spokesperson for the Ministry of Justice confirmed that ‘the government currently had no plans to change the grounds for divorce or any of the reasons used to support irretrievable breakdown of marriage’. 

Quite how this approach tallies with another senior High Court Family Judge Sir Paul Coleridge is interesting.  He has recently launched a campaign to save marriage, declaring that it would be ‘irresponsible’ of the judiciary not to speak out against the ‘appalling’ rise in divorce and rather than recommend a policy to streamline ‘no fault’ divorce procedure has instead set up the Marriage Foundation at an estimated cost of £150,000 with a view to lobbying towards family friendly policies and commissioning research in to strengthening marriage.  Sir Paul criticises the ‘Hello magazine approach’ to marriage suggesting that there is a ‘completely unrealistic expectation about long term relationships and marriage in particular’, and comments further that ‘a number of celebrities who grace the cover of Hello subsequently appear within his Court room a year or two down the line’.  He believes that the Marriage Foundation will help promote the view that to have a successful marriage or relationship takes not only realistic expectations but constant work to leave couples with something worth fighting for.  

This entry was posted in Family Law.

One response to Streamlined Divorce v Promotion of Marriage

  1. Emma Tameside says:

    Hi Gillian,

    You make some very good points, but it’s important to focus on the biggest grounds for divorce currently used in the UK… Unreasonable behaviour.

    Essential you must show that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her.

    It’s worth bearing in mind that the court doesn’t insist on really severe allegations of unreasonable behaviour in order to grant a divorce. For example, relatively mild ‘allegations’ such as devoting too much time to a career, having no common interests or pursuing a separate social life may suffice.

    If someone wants to push through a divorce, this clause gives them plenty of opportunity to build a case.

    But really, couples should do everything they can to identify the root issues that drive the decision for divorce. Separation help can provide support during the breakup process, especially where children are involved, but it is hard to understand why the two consenting signees to the marriage ‘contract’ should not be able to end the contract at any time in a legal manner without having to jump through these hoops.

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