There has been a plethora of celebrity divorces plastered in the media in recent times. We, the general public, have watched many a celebrity couple fall in love, have an extravagant wedding ceremony only to file for divorce a short time later. Often the impending divorce proceedings play out in the media and we are informed in most cases that the couple split for irreconcilable differences.
In contemplating divorce, when parties cite irreconcilable differences as the reason for the marital breakdown, in essence it means that the end of the marriage was not the fault of only one party or for a specific reason such as adultery, cruelty, etc. It really means that the marriage no longer works and cannot be repaired, and by the parties taking this route it cannot be contested. Additionally, little to no proof is required. There are several countries that provide no-fault divorces for parties claiming the irretrievable breakdown of the marriage. These include but are not limited to the United States, Australia, Canada, China and most recently the United Kingdom. However, many other jurisdictions around the world including numerous Caribbean countries require parties to provide a reason, i.e. indicate the fault committed by the other party as the reason for the irretrievable breakdown of the marriage.
The Matrimonial Causes Act, Chapter 125 of the Statute Laws of the Bahamas, is the governing legislation with which parties who seek to divorce must comply. Section 16 of the Act sets out five grounds a Petitioner must present to the court to consider on a Petition. These grounds include adultery, cruelty, desertion for a continuous period of two years, separation for a continuous period of five years and guilt of homosexual acts, sodomy or bestiality. The Petitioner must also produce to the court evidence in support of the grounds raised in his or her Petition. Once these matters come before the court, it is the court’s duty to inquire into the facts alleged, consider whether there has been any connivance or condonation on the part of the Petitioner and whether there was any collusion. The court also enquires into any counter charges made against the Petitioner before making its determination. To date there has been no indication as to any changes in the legislation regarding the inclusion of no-fault divorces. However, while there must be someone to blame for the marital breakdown, many parties proceed on an uncontested basis in an effort to expedite the divorce proceedings.
In Bermuda, on March 2, 2022, its Senate passed legislation introducing no-fault divorces which is aimed at limiting and minimising the cost and emotional distress that previously accompanied the fault-based legal process. The previous legislation similar to that of the Bahamas and other jurisdictions without no-fault divorces required parties to seek divorce under the grounds of “adultery, making continuation of the marriage intolerable; other unacceptable behaviour, that is intolerable; desertion by the Respondent lasting two years; separation for a period of two years with the Respondent’s consent; or separation for a period of five years (without the need for consent).”
The Divorce, Dissolution and Separation Act 2020, which by its short title was enacted in relation to marriage and civil partnership in England and Wales and make provisions about divorce, dissolution and separation, and for connected purposes, was passed in June 2020 and came into force on April 6, 2022 and sets out to reform the divorce process by removing the previous concept of assigning fault for the marital breakdown to one party. This legislation replaced the five grounds that were previously needed to establish the marital breakdown and allow couples to divorce without assigning fault or blame, removed the possibility of contesting the divorce, introduced an option for the parties to make a joint application and ensured that the language is in plain English, changing the words ‘decree nisi’ to ‘conditional order’ and ‘decree absolute’ to ‘final order’.
In a press release from the Ministry of Justice, HM Courts and Tribunals Services and the Right Honourable Dominic Raab MP following the enactment of the new legislation entitled “‘Blame game’ ends as no-fault divorce comes into force”, Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice, Dominic Raab said:
“The breakdown of a marriage can be agonising for all involved, especially children. We want to reduce the acrimony couples endure and end the anguish that children suffer.
That’s why we are allowing couples to apply for divorce without having to prove fault, ending the blame game, where a marriage has broken down irretrievably, and enabling couples to move on with their lives without the bitter wrangling of an adversarial divorce process.”
From the above it appears that the changes to legislation to allow no-fault divorces in divorce proceedings stem from the need to help couples focus on key practical decisions from the fallout, such as custody of children, finances, division of assets and looking to the future. Further, it stops one party from vindictively contesting and dragging out the divorce process and ultimately holding their spouse in an unhappy marriage.