NI: Clare Curran – Why our divorce regime also needs reform
Clare Curran, partner and head of the family and matrimonial department at Belfast-based Worthingtons Solicitors, writes on the case for divorce reform in Northern Ireland.
In light of the announcement by the Government last week regarding imminent reform to the divorce system in England and Wales, it’s time to explain the grounds needed for divorce here in Northern Ireland and why the system is ripe for change here too.
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:
- That the respondent has committed adultery;
- That the respondent has behaved in such a way that the petitioner cannot be reasonably expected to live with the respondent;
- That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- That the parties to the marriage have lived apart for a continuous period of at least two years and the respondent consents to a decree being granted;
- That the parties have lived apart for a continuous period of at least five 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 two years and both agree to the divorce, or five 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 two 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 time frame of six months’ separation.
This minimum period if 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 focused to one which is resolution focused.
The Government has 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.
- Clare Curran is partner and head of the family and matrimonial department at Worthingtons Solicitors. This article first appeared in the Belfast Telegraph.