Who’s at fault

Under the current legal system, there is only one ground for divorce, namely that the marriage has irretrievably broken down.  This ground must be evidenced by one of five factors:

(a)that the respondent has committed adultery;

(b)that the respondent has acted in such a way that is deemed unreasonable;

(c)that the respondent has deserted the petitioner;

(d)that the parties have been separated for two years with both parties consent;

(e)that the parties have been separated for five years.

These five factors can be the cause to much distress between parties to a marriage. Desertion is seldom used and in any event, must have taken place for a minimum period of two years. Separation also results in a significant period of time elapsing before divorce is available. For parties that wish to divorce inside two years, only ‘a’ or ‘b’ are viable and therefore one party must blame the breakdown of the marriage on the other.

This is the cause of much debate within the UK family Courts. Baroness Hale of Richmond, the country’s most senior female judge, has been a vocal advocate for many years. She suggests that there should be an overhaul to the current legislation that would incorporate “no fault” divorce- this method is used in many other countries including Canada, Australia and Spain.

As the law stands, couples who do not want to apportion blame can wait two years but in the interim period, must make arrangements for dealing with children or financial matters. It is advised that any such arrangements be drafted into a Separation Agreement to allow the parties to have a binding agreement in place that can be the basis of the divorce following the two year period. If it is not possible to wait for two years then unfortunately there is no option but for an element of blame. This can cause difficulties, particularly whilst in the process of making arrangements for children or finances, blame can have a detrimental effect. Every effort should be made to ensure that blame does not impede attempts  at reaching settlements.
For further information contact the AWB Charlesworth Family law team on Skipton (01756) 793333 or Keighley (01535) 613678 or email enquiries@awbclaw.co.uk
Andrew Foulds
Family Law Solicitor
Tel: 01756 692877