At present, the only ground for divorce is that the marriage has irretrievably broken down (not irreconcilable differences as it often believed). The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault-based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent.
The Government is proposing to remove the fault based facts and the ability to defend a divorce. The reasons are as follows:-
- The breakdown of a marriage is a difficult time for families. The decision to divorce is often a very painful one. Where children are involved, the effects in particular where there is ongoing conflict, can be profound
- Under current law in England and Wales, couples must either live apart for a substantial period of time before they may divorce, or else they must make allegations about their spouse's conduct. This is sometimes perceived as showing that the other spouse is "at fault".
- Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children. There have been wide calls to reform the law to address these concerns, often framed as removing the concept of "fault".
As such, the Government proposes a shift away from blame with 2 objectives:
- to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course
- to make sure that divorcing couples are not put through legal requirements which can lead to conflict and poor outcomes for children