At the moment the only ground for a divorce is that the marriage has irretrievably broken down. The Court then has to be satisfied that the person applying for the divorce can prove one of five facts. These are adultery, unreasonable behavior, desertion, 2 years apart and both parties agreeing or 5 years apart and one party not agreeing.
In 1996 the Family Law Act would have introduced the concept of no fault divorce and required parties to attend information meetings with a view to encouraging them to get back together where possible. However there were a series of information meeting pilot schemes in 2001 and the Government concluded that the provisions were unworkable. That whole section of the 1996 Act has now been appealed.
The reality now is that people still have to prove fault to get divorced unless they have been apart for more than 2 years and agree or 5 years and don’t agree. This means that parties who have decided they simply don’t want to be together anymore either have to wait or they have to make something up to get the divorce through.
Alleging fault in a divorce can increase conflict between parties. Alternatively people feel compelled to make something up i.e. agreeing to adultery when that has never happened.
Many Lawyers and senior Judges are in favour of a no fault divorce system but the Government have opposed this in the past believing that it could make divorce easier and thereby increase the divorce rate.
Proposals to change the legislation to remove fault from a divorce is one of the many bills which has fallen by the wayside with the Election.
Interestingly in Scotland the basis for a divorce is very similar but in 2006 the separation period was reduced from 2 years to 1 year where there was agreement and from 5 years to 2 years where the other party did not agree. The desertion fact was also removed.