One of the most common questions that divorce lawyers have received from new clients is about ‘no fault divorce’.
It is not currently possible in England to get divorced on the basis of ‘no fault’.
The legal position is that every divorce is based on the irretrievable breakdown of the marriage, and there are5 ways of proving it. However, there are only 2 ways of proving it that are available without waiting a minimum of 2 years. These are for one spouse to allege either adultery or unreasonable behavior of the other spouse.
Although it is possible to wait 2 years after separation and then divorce by consent without alleging fault, that requires the cooperation of your husband/wife and so is often either not available at all, or one of you is not willing to wait that long for a divorce. The reality is that if you do not want to wait, there is not a no-fault divorce option available.
However, a change in the law is finally on the horizon.
The government has agreed to change the law to make no-fault divorce a reality in the UK. It is currently consulting on the details, but it looks as though a no-fault divorce would be available with a notice period/cooling off period of 6 months.
When will this come in? As of May 2019, it is difficult to say exactly: not only do we have to wait for the consultation period to finish, but the government will then have to actually find the energy/willpower to introduce the legislation and vote on it. Brexit seems to be occupying everyone’s attention, and there may even be a change of government before too long (which could interrupt the legislative process)! Change is definitely coming, but it could still be a while…
Can I get an automatic divorce after a long separation?
The short answer is ‘no’. The procedure for getting divorced is exactly the same (in terms of forms completed and steps that the court goes through) whichever of the 5 grounds one is relying on.
If you have been separated from your husband or wife for at least 5 years, then you can file a divorce petition on the basis of 5 years separation. You do not need your husband’s/wife’s cooperation for the divorce to proceed, and so long as you can actually prove that you have lived separately (which should be fairly straightforward) then there is no danger that your husband or wife could successfully defend the petition.
It is very rare for anyone to divorce on the basis of 5 years separation, mainly because it is fairly straightforward to divorce either immediately on the basis of unreasonable behaviour or 2 years separation (by agreement). We have explained in a separate blog here the low threshold that currently exists for establishing sufficient unreasonable behaviour to justify a divorce petition. The ‘2 years separation by consent’ is the next most attractive option for couples who are willing to wait that long to avoid even the suggestion of the other behaving unreasonably.
That said, if you do find yourself still married after 5 years of separation and then decide you wish to get divorced, all you need to provide is the addresses at which you have lived separately for that 5 plus year period. The cost is the same, the period of time you will wait for the court to process the paperwork is the same, and the final decree absolute is exactly the same (whichever grounds you use).
Can I get divorced after less than a year?
Technically, it is not legally possible to divorce less than one year after the date of the marriage. However, if your marriage has broken down within that period of time, there are still practical steps that you can take to resolve the situation.
It is always sad when someone gets in touch with us to say that they need to get divorced, but there is something particularly poignant about that happening less than a year after the marriage itself.
However, a marriage breakdown less than one year after the wedding is not as rare as people might think. For example, we recently had experience of a husband whose wife had told him she wanted a divorce only 10 months after the date of the wedding, but when they had lived together for 8 years before getting married at all. Sometimes couples who have lived together for a long time get married because, amongst other reasons, they think it will help to strengthen their relationship – only to find that the same issues exist in the marriage as previously in their cohabitating relationship.
One thing to be very aware of in that kind of situation is that although there is no such thing in England as a common law marriage (ie where people live together for so long that they are treated as common law husband and wife), the court will subsequently include the years of cohabitation when adding up the years of the marriage. The result of that can make for a very different financial outcome (with the wealthier spouse paying substantially more to the less well off spouse). Something to think about when considering marriage as a last ditch effort to save a potentially failing long term relationship!
If you do find that you are facing a divorce situation after less than a year, you may not be able to start divorce proceedings immediately, but you can certainly start trying to agree the division of the finances with your husband / wife. It’s not unusual for it to take longer to agree the finances than get the divorce done anyway, so this way you can be ahead of the game and file your financial agreement as soon as the divorce timetable then allows you.