Change in divorce law expected after court ruling
Family, Matrimonial and Civil Partnerships

The Supreme Court judges' decision to prevent a wife from divorcing her husband, which was made 'without enthusiasm', has led to proposals to introduce 'no fault' divorce.

The case arose after a wife's application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down. Such challenges are extremely rare. Under the law, there is an automatic right to a divorce only in a limited number of circumstances. These are:

  • Divorce without consent can take place where the couple have lived apart for five years;
  • A couple who have lived apart for two years can divorce with the consent of both spouses; or
  • A couple can divorce where there is an irretrievable breakdown in the relationship.
  • This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her. In this instance, the husband's behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.

    The husband believed that a reconciliation was possible, and the couple had not lived apart for five years.

    When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate. The wife's evidence in respect of her husband's behaviour was therefore limited.

    The appeal to the Supreme Court dealt in essence not with the husband's behaviour as such, but the effect it had on his wife. Under no fault divorce the need to show evidence of unreasonable behaviour would be removed.

    Our experts in family law are experienced in dealing with all aspects, contentious or not, of family breakdown.