Posted by Sorcha McGillycuddy, Trainee Solicitor
Divorce – The blame game
While going through a divorce is rarely (if ever) going to be a pleasant experience, it is further exasperated by the need to allocate blame. More often than not when a relationship breaks down and divorce is being contemplated, spouses will seek to point the blame at each other. In many ways the current law in England encourages this approach, as under the current law the applying spouse needs to rely on one of five grounds for a divorce.
Grounds for divorce
In order to apply for a divorce you need to be able to prove to the court that your marriage has irretrievably broken down by relying on one of five grounds:-
- Unreasonable behaviour
- Desertion for more than two years
- You’ve been separated for more than two years
- You’ve been separated for at least five years
While it is possible to wait for two years and then separate amicably, it is unlikely that most couples will want to do this. They therefore need to show that the other party has committed adultery or acted unreasonably
No fault divorce
There is no definition of what constitutes unreasonable behaviour and therefore it is for the judge to decide. This often means that the spouse applying for the divorce will want to include as much as possible in their application in order to make sure that their divorce is granted. The question is what about those who are unwilling to blame their spouse? What happens when both spouses have simply grown apart or have children together and therefore don’t want to aggravate what is already a tense situation?
By encouraging the applicant spouse to list conduct that constitutes unreasonable behaviour, the Government is reducing the prospect of an amicable divorce.
The contradiction is that while the Government encourage couples to resolve their differences out of court, they appear unwilling to change the law requiring the same couples to place blame.
Those against changing the law argue that allowing no-fault divorce will make ending then marriage too easy. This has not been evidenced in other countries, such as Scotland, and therefore appears to hold no water on this issue. When the Scottish Government changed the legislation to allow for no fault divorce after a separation of only one year, divorce applications increased for the first two years only. This is likely to be as a result of couples who previously had to wait to apply being able to now do so.
Reform the law
Government do not insist on grounds for marriage, therefore why do they require spouses to prove to the court that the marriage has broken down irretrievably and at the same time point to the culprit?
It is time for the law to be updated to fit in with modern society, and to recognise that the reason for a marriage to break down should not be limited to 5 grounds. It should respect a couple’s wish to divorce and recognise that encouraging spouses to allocate blame only worsens an already fraught situation.
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