There has been much talk in the press recently about the problems
facing those couples who want to seek a divorce but who do not want to embark
on an adversarial process of issuing a fault based petition against their
spouse to do so.
Here in Northern Ireland the law as it stands requires the
parties, when seeking a divorce, to not only confirm that their marriage has
broken down ‘irretrievably,’ that is to say, that there is no prospect of a
reconciliation, but additionally current legislation requires the Petitioning
party to satisfy the court that the irretrievable breakdown of the marriage is
supported by one of the following grounds:
1. That the
Respondent has committed adultery;
2. That the
Respondent has behaved in such a way that the Petitioner cannot be reasonably
expected to live with the Respondent;
3. That the Respondent
has deserted the Petitioner for a continuous period of at least 2 years
immediately preceding the presentation of the Petition;
4. That the parties
to the marriage have lived apart for a continuous period of at least 2 years
and the Respondent consents to a decree being granted;
5. That the parties
have lived apart for a continuous period of at least 5 years immediately
preceding the presentation of the Petition.
As can be seen from the grounds set out above, unless the
parties have been separated for over 2 years and both agree to the divorce, or
5 years if one party does not agree, the Petitioning party must allege that
their spouse has either committed adultery, or behaved so unreasonably that (s)he
could not be expected to continue living together, or that the Respondent has
deserted him/ her for over 2 years.
These grounds are known as ‘fault based’ petitions and
details must be set out as to the nature and extent of the behaviour alleged in
order to convince the court that the legal threshold has been met.
The Government in England and Wales propose to introduce a no
fault divorce based on a minimum timeframe of 6 months separation. This minimum period is proposed to allow
couples a period of reflection following their marriage breakdown before
embarking upon issuing proceedings to dissolve their marriage. It is hoped that by the introduction of such
reform, the acrimony and hostility which frequently results from a fault based
petition being issued can be avoided and the process will shift from one which
is blame focussed to one which is resolution focussed. The Government have announced the reform
after a period of public consultation which was launched last September and
following calls from senior members of the Judiciary and other associated
bodies who have been calling for reform to what has long been seen by many as
an outdated system. It is hoped that the
change will be beneficial, not just for the spouses involved, but most
importantly for any children too, to minimise the emotional impact on them of a
more contentious process.
For those of us practising here in Northern Ireland, the
introduction of similar reform here will require legislative change so we will
have to wait a little longer to see the benefits of a changed system but in the
meantime lawyers, and other interested parties, will continue to campaign for
similar change and will watch with interest as to how the impact is felt in England
and Wales.
For advice on all legal issues pertaining to marriage and relationship breakdowns, please contact our Family Law Department on [email protected].
