It is a commonly held view that if both parties in a marriage have formed the view that their marriage is over, they can proceed with a divorce on the basis of “irreconcilable differences”, with no blame being attached to either party. Unfortunately, this is not the case. Matrimonial law, which is based on a statute passed as long ago as 1973, requires that a divorce (or dissolution of a civil partnership in the case of many same-sex couples) is founded on the fact that the marriage has irretrievably broken down. To establish this, it is necessary to rely on one of five facts:
- The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent
- The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
- The parties have been living separately for at least two years and the respondent consents to the divorce
- The respondent has deserted the petitioner for at least two years
- The parties have lived apart for at least five years
As can be seen, if the parties do not wish to wait two years before divorcing, it is necessary for one party to “blame” the other for the breakdown of the marriage. This is not conducive to concluding the marriage amicably and this can be damaging, particularly if the parties are going to have to continue to deal with each other if there are children. In 2012, there were over 72,000 divorces where adultery or unreasonable behaviour were cited.
The Supreme Court is due to decide the widely reported case in which a wife was not granted a divorce because she could not demonstrate that her husband’s behaviour had been unreasonable. The other four facts did not apply. The husband opposed the divorce application claiming that the breakdown was not irretrievable. The wife's evidence alluded to her husband prioritising work over family life, making her feel unappreciated because he had not provided her 'with love, attention or affection and was not supporting of her role as a homemaker and mother', their having arguments and his having embarrassed her by chastising her in front of others. In the view of the Court of Appeal, his behaviour was not sufficiently unreasonable to grant a divorce, despite it being clear that the marriage had broken down.The Court of Appeal, noted that Parliament had not set the law to allow 'divorce on demand', and concluded 'with no enthusiasm whatsoever' that the marriage must, in the absence of the husband's agreement, continue until the separation has lasted for five years.
Resolution, which is an organisation of family law professionals whose aim is to avoid unnecessary confrontation between separating couples, has been leading a campaign to try and change the law to allow people to divorce without blame. It is not alone in calling for change. Successive Presidents of the Family Division have stressed the need for reform. Many other countries around the world – including Australia, the United States, and Spain – allow for divorce without blame. Let us hope that we do not have to wait another 45 years for a change in matrimonial law!
All the family lawyers at Wheelers LLP are members of Resolution who follow their Code of Practice.