If you sadly reach the conclusion that your marriage is irretrievably broken down, you can’t just make a mutual decision to start divorce proceedings. In many jurisdictions in the western world, no fault divorce has been the norm for decades, but not yet in Britain.
In this country you still have to apportion blame or wait for a minimum of two years from the day of separation. Even then (on the separation ground) you need the consent of the other spouse, without which you would have to wait five years.
No fault divorce was first introduced by the Family Law Act 1996 but was later considered unworkable and repealed. There has been a movement for reform ever since and demands for change mounted after the Tini Owens case last year. Mrs Owens had filed for divorce on the grounds of her husband’s unreasonable behaviour but she failed right up to the Supreme Court to provide sufficient evidence of that behaviour being unreasonable enough and the divorce was thrown out. She has had to wait for the expiry of the full five years.
Mrs Owen’s situation was highly unusual and it is very rare for divorce proceedings to be contested. Nonetheless it is not a good start to ending the marriage when you have to raise allegations of unpalatable behaviour which often sets the tone for the rest of the case.
The new law is likely to require that just one of the spouses gives notice that the marriage has broken down and the separation period is reduced to nine months.
The Government was committed to reforming divorce law in the next parliamentary session, which started in May. However, it seems that the turmoil over Brexit has derailed this timetable. But the push for reform is now very strong and the lobbying of Resolution, the national family lawyers’ association, is relentless. So we very much hope that within the next 12 months at most, ending a marriage will no longer be the often fraught process that it currently is.
The divorce reform will not affect the law concerning matrimonial finances however. This will continue to be a challenging process full of legal pitfalls. Unless yours is the most basic of cases, it is always wise to seek advice from a family law specialist before agreeing the terms of a financial settlement.
For those who apply for divorce online, a word of warning in this context: you must make sure that as Petitioner, you tick the boxes for making a financial application for you and the children, if they are under 18. If you fail to do this, you may be disqualified in the future from applying for a share of the marital assets.