There has been much talk in the press recently about the problems facing those couples who want to seek a divorce but who do not want to embark on an adversarial process of issuing a fault based petition against their spouse to do so.
Here in Northern Ireland the law as it stands requires the parties, when seeking a divorce, to not only confirm that their marriage has broken down ‘irretrievably,’ that is to say, that there is no prospect of a reconciliation, but additionally current legislation requires the Petitioning party to satisfy the court that the irretrievable breakdown of the marriage is supported by one of the following grounds:
1. That the Respondent has committed adultery;
2. That the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with the Respondent;
3. That the Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately preceding the presentation of the Petition;
4. That the parties to the marriage have lived apart for a continuous period of at least 2 years and the Respondent consents to a decree being granted;
5. That the parties have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the Petition.
As can be seen from the grounds set out above, unless the parties have been separated for over 2 years and both agree to the divorce, or 5 years if one party does not agree, the Petitioning party must allege that their spouse has either committed adultery, or behaved so unreasonably that (s)he could not be expected to continue living together, or that the Respondent has deserted him/ her for over 2 years.
These grounds are known as ‘fault based’ petitions and details must be set out as to the nature and extent of the behaviour alleged in order to convince the court that the legal threshold has been met.
The Government in England and Wales propose to introduce a no fault divorce based on a minimum timeframe of 6 months separation. This minimum period is proposed to allow couples a period of reflection following their marriage breakdown before embarking upon issuing proceedings to dissolve their marriage. It is hoped that by the introduction of such reform, the acrimony and hostility which frequently results from a fault based petition being issued can be avoided and the process will shift from one which is blame focussed to one which is resolution focussed. The Government have announced the reform after a period of public consultation which was launched last September and following calls from senior members of the Judiciary and other associated bodies who have been calling for reform to what has long been seen by many as an outdated system. It is hoped that the change will be beneficial, not just for the spouses involved, but most importantly for any children too, to minimise the emotional impact on them of a more contentious process.
For those of us practising here in Northern Ireland, the introduction of similar reform here will require legislative change so we will have to wait a little longer to see the benefits of a changed system but in the meantime lawyers, and other interested parties, will continue to campaign for similar change and will watch with interest as to how the impact is felt in England and Wales.
For advice on all legal issues pertaining to marriage and relationship breakdowns, please contact our Family Law Department on [email protected].
Call 028 9043 4015 or Contact us