In marriage law, one of the most eagerly awaiting changes to the law as it currently stands is the implementation of no-fault divorce.
After the Divorce, Dissolution and Separation Act 2020 finally comes into effect with a tentative date of 2022, one of the most archaic parts of marriage law will be expunged, and couples who no longer want to be together do not need to blame one party or another for the union’s breakdown.
The grounds for divorce have become a contested part of the process, in no small part because marital breakdowns that genuinely do not have a fault require one or both of the parties to blame each other.
This can have significant implications when it comes to property rights, rights to access to children, and whether one member of the union has the right to ancillary relief.
Who Can Get A Divorce?
Under English law, a divorce can only take place for marriages that have lasted for over a year, as before that annulment is an option, which makes the marriage null and void.
This can be done if:
- The marriage was never legally valid, due to being relatives, being under 16 or already being married.
- The marriage was not consummated.
- The marriage was not consented to.
- One person has a sexually transmitted disease.
- One person is pregnant to another person at the time of marriage.
- One of the members is transitioning to a different gender.
Outside of this, legal separation is an option that allows people to live apart before deciding on a divorce, but in order for a divorce to be allowed, the following need to be true:
- The marriage needs to have lasted over a year.
- The relationship needs to have permanently broken down.
- The marriage needs to have been legally recognised.
- One member of the marriage must permanently live in the UK.
To prove the relationship has broken down in a way that cannot possibly be salvaged, a reason needs to be given, often known as the grounds for divorce or the “facts”.
Here are the five accepted grounds of divorce, at least one of which is required for a divorce to go through until the new law takes effect.
Adultery is when one of the partners has sex with a member of the opposite sex outside of the marriage and is often the cause listed in no-fault divorce cases when they have to provide a reason, as there is no financial penalty or other detriments besides reputational damage.
There are a lot of problems with this ground, besides the fact that it has not been updated to factor in same-sex marriages.
One particular, bizarre addition to the law is that adultery cannot be provided as the reason if the couple stays together for more than six months after the act has been found out.
This was previously several different reasons that were put together by the Matrimonial Causes Act 1973 and as a result, is the most common reason given for a divorce.
The rule is somewhat vaguely defined as any behaviour that a person cannot reasonably be expected to tolerate.
This includes verbal and physical abuse, alcoholism, drug-taking and refusing to pay towards living expenses.
If one person in the marriage has left for at least two years before you apply for the divorce, even if they do come back for up to six months in that period, then there may be grounds to claim that the marriage has been deserted.
Two Years Separation
If both people in the marriage have been separated for two years and both agree to a divorce, this can be found as a reasonable grounds for divorce.
Interestingly this can even include living in the same house, so long as it is evident that the pair are not living together as a couple.
Five Years Apart
If a couple has been separated for five years, then a divorce can be applied for by one of the parties even if the other one disagrees.
For more information from expert divorce solicitors in Surrey, get in touch today.