ASK A FAMILY LAWYER
Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues. Neil Dring, who is based in our Wetherby office, tackles this week’s topic and explains the basics of divorce under English law, in a special two part feature.
“My spouse and I aren’t getting on as well as we used to and we think the marriage is over. We’ve drifted apart. Can’t we just get divorced on the ground of irreconcilable differences?”
This is a question not infrequently asked by newly separated couples looking for a quick and easy divorce without the need to ‘blame’ the other. The simple, if slightly glib, answer is that a no-fault divorce can only be brought on the basis of ‘irreconcilable differences’ in certain states of the USA. In fact in some states, where the idea of a fault-based divorce has been abandoned altogether, it is the only ground to bring a petition. But it is not a ground for divorce under the law of England and Wales. We may have recently imported a number of US ‘traditions’ such as Halloween, School Proms and Black Friday, but not (yet) their divorce laws. I say not ‘yet’ because there are signs that it could be on the way. Resolution is a group of influential practising family lawyers who are currently campaigning for a change in the law to an entirely no-fault system. The idea is to avoid a lot of the ill feeling that can arise under the current law which requires one spouse to appear to ‘blame’ the other in order to get a quick divorce. It is a difficult and emotional time already and stress levels don’t need to be increased by lawyers arguing over apportioning blame for the reasons for the separation.
My recent experience is that Judges seem to share this view and Resolution are pushing against an open door so far as the courts are concerned. Within the limits of the existing law, Judges are making it easier to obtain a divorce in ways that I will explain later. But a real change to a truly no fault ‘system’ needs legislation from the Government who, in fairness, appear to have their hands full with other matters for the next couple of years. For the time being we may be stuck with our existing laws.
Anybody looking to obtain a divorce as things currently stand faces two legal hurdles. The first, usually, is easy enough. In all cases a spouse has to be able to prove (technically, at least) that the marriage has irretrievably broken down. In reality all this means is that the individual wanting to issue the petition must have to come to their own conclusion that the marriage is finally over and there is no prospect of reconciliation. There is no need, at this stage, for the other spouse to agree or to share that view.
The second hurdle
This is where it can get a little trickier. Having successfully negotiated the first hurdle our prospective petitioner is then faced with five different possible obstacles, any one of which will lead to a short run-in down the final straight to a decree absolute of divorce. But which of the five to choose?
These are the five different legal ‘facts’ that can be relied upon in English law to obtain a divorce. I say five, but in over 30 years of specialist divorce lawyering there is one of them I have yet to come across. So I will keep it brief. The law does allow for a divorce if you have been ‘deserted’ by your other half and more than two years has elapsed since it happened. However, in practice the other four options are easier and better. I am sure that desertion petitions do arise from time to time, but I have never issued or seen one. Maybe one day.
The separation petitions
In certain limited circumstances it is already possible to obtain a no-fault divorce under English law. You just have to be prepared to wait a bit. One of the five facts that can lead to a decree absolute is that the parties have lived apart for a continuous period of two years and both of them agree to a divorce. No fault. No blame. Just both agreeing to a divorce, so long as you have been apart for at least two years. Which is fine if you have already been separated for a long period before going to a solicitor, or if waiting isn’t a problem. But often it is a problem, especially if is there is an urgent need to sort out complex financial arrangements which are best done within existing divorce proceedings.
There is another potential trap for the unwary. The two year ‘clock’ does not start ticking until you have come to the conclusion that the marriage is at an end. If you separate on a trial basis, to see how things go, but only decide six months later that the marriage over, the two year period does not start to run until that later date.
And, of course, what if your spouse refuses to agree to a divorce after two years of separation? Well, in the absence of consent you need to have been lived apart for much longer. Five years in fact. Either that or you will have to look at the two remaining ‘fault based’ options.
In part two Neil explains the commonest fault-based grounds for divorce