Government rejects plans to reform divorce law

1 March, 2017

Current divorce law

Under current law, the sole ground for divorce is the irretrievable breakdown of a marriage. In order to establish that the marriage has irretrievably broken down, the petitioner must place reliance on one of five facts:

  • That their spouse has committed adultery;
  • That their spouse has behaved in such a way that they cannot reasonably be expected to live with them;
  • That they have been abandoned;
  • That they have been separated for two years and they agree that they should divorce; or
  • That they have been separated for five years.

The argument in favour of the two and five year timeframes is that it protects against couples from divorcing too quickly. However, the overwhelming view amongst family practitioners is that the current law encourages people to file fault-based divorce petitions, rather than separating and waiting for two years to file a petition to which both parties mutually consent.

The result is that couples are being forced to apportion blame for the breakdown of their marriage, by citing particulars of unreasonable behaviour or incidents of adultery. This often increases tension and animosity during an already difficult and emotional time.

Reforms

In an age where mediation and non-conflict based resolution is actively encouraged by the courts, practitioners have been exhaustively calling for the government to review current divorce legislation.

However, the government has recently announced that it has no current plans to review the fault-based divorce system, leaving many to wonder when, if ever, this will become a government priority.

The government’s announcement comes in the wake of the high profile case of Tini Owens, who asked the Court of Appeal to overturn a family court ruling that she could not divorce her husband, despite feeling “locked in” to her marriage. Those in favour of reform argue that this case is a clear demonstration of why a no-fault based divorce system is in desperate need of being introduced. The outcome of the hearing is awaited.