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At the moment there are five facts that can be used to satisfy the requirement that the marriage has broken down irretrievably and these are:
There is no ground for a couple that have grown apart and no longer wish to be married. However, this is exactly what Sir James Munby wants to address by allowing for a divorce to
proceed by consent.
Well, at the moment the reality is that any couple who wish to get divorced but don’t wan’t to wait until they have been separated for 2 years generally issue divorce proceedings on the basis of their spouse’s unreasonable behaviour.
The general expectation (although it does not occur in all cases) is that the contents of the divorce petition will be kept as bland as possible and will be agreed by both sides so that the divorce can proceed undefended.
In reality, it is viewed by both lawyers and their clients as being a paper exercise to allow the divorce to proceed.
Probably the greatest benefit of allowing a divorce to proceed by consent would be the cost saving benefit for our clients.
Although a divorce petition is a relatively straight forward document to draft, it still takes time and there is still the need to get the wording of the petition agreed by the other party.
Being able to get divorced by consent would remove most of the time that is incurred and probably mean that many more clients would feel comfortable to draft the documents themselves with only the lightest of touches being needed by their lawyer.
Of course, the other benefit would be the reduction of stress in what can be an extremely emotional process for many. Such difficult emotions should not be underestimated as often the
divorce is something that takes place at the start of what can be a long process.
Probably the main concern that is raised when the question of divorce by consent is raised is a moral concern that it could undermine the sanctity of marriage.
This is an area that is probably beyond the scope of this blog. However, in my opinion, these concerns are unfounded.
For the majority of people that I have met, getting divorced is not a decision that has been reached lightly nor a snap decision. It is often a decision that has taken a long time to reach and this decision is often made long before anyone sets foot in a solicitors office.
The main limitation upon the proposal is that it is only intended to take place where there are no children. At first blush I cannot see why this distinction has been drawn given that the divorce process is entirely separate from disputes involving children.
This is especially the case since the new court forms for divorce have restricted the necessary information in relation to children of the family. The clear implication of this, and the position taken
by the Court for many years now, is that court proceedings are not the correct mechanism for resolving disputes regarding children.
It may be that there are very good reasons for this but, at the moment, I cannot see them. This is a subject that is always likely to cause some controversy but, in my opinion, the prospect of divorce by consent is something to be welcomed rather than feared.