Prospect of a No Fault Divorce with Upcoming Divorce Law Reform

Prospect of a No Fault Divorce with Upcoming Divorce Law Reform

Following the highly publicised case of Owens v Owen, in which the Supreme Court ruled that Tini Owens was unable to divorce her husband until she had been separated for five years, the Government has called for consultation to remove the need to allege ‘fault’ in divorce applications.

Justice Secretary David Gauke has admitted that divorce law in England and Wales is "out of touch with modern life".

Currently, when you apply for a divorce you must prove your marriage has broken down and give one of the following five reasons:

• Adultery

• Unreasonable behaviour

• Desertion

• You have lived apart for more than two years, and both agree to the divorce

• You have lived apart for at least five years, even if your husband or wife disagrees

Scotland has already reformed its divorce laws (to couples without children of the marriage under 16).  If a couple can prove their marriage is broken down with one year's separation - with the consent of both partners - or two years separation without consent, they can apply for dissolution.

Why fault-based divorce law is in need of reform:

For many years, the ethos of the family law system and the legislation governing divorce have been at severe odds with each other.  The Courts encourage divorcing couples to work out details such as the financial settlement and arrangements for children between themselves.  Non-conflict dispute resolution methods such as round-table negotiation and family mediation services are encouraged.   But in contrast to this, unless the Respondent spouse (the spouse on which the divorce petition is served) agrees to a divorce after living apart for two years, couples have no choice but to apply under a fault-based reason, i.e. adultery, unreasonable behaviour, and desertion. 

Unless adultery has occurred, the route open to the Petitioning spouse is that of unreasonable behaviour.  To show unreasonable behaviour, it is necessary to set out examples for the Court to peruse.  It does not take much imagination to see how having such examples included in the divorce petition could lead to feelings of humiliation and fury on the part of the Respondent, who is then expected to work out details of the divorce in a calm, non-confrontational manner.  

How the Government plans to change the divorce law system:

In a recent press release, the Government announced a public consultation would be launched on the 15th September 2018.  It will apply to both marriages and Civil Partnerships. The consultation includes the following proposals:

Keeping the sole ground for divorce: the irretrievable breakdown of a marriage.

Eliminating the need to show evidence of the other spouse’s conduct or a period of living apart.

Introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce.

Removing the opportunity for the other spouse to contest the divorce application.

A review of the minimum timeframe for the process between the decree nisi and decree absolute will also be undertaken.  The aim is to provide a period of reflection before the final divorce is granted and ensure couples have time to work out financial agreements and arrangements for children if divorce proves inevitable.

The Government has considered that in some circumstances, it may be necessary to retain the right to defend a divorce, for example in situations whereby one party lacks mental capacity.

Justice Secretary David Gauke said in relation to the consultation:

“Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples. That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future”.

What will lawyers think about the proposed divorce requirements?

You will be hard pressed to find many family law solicitors or other professionals working within the sphere, such as Mediators, objecting to the Government’s plans to reform divorce.  Most who have worked at the coal-face of divorce have despaired at the current status quo, which sees couples put in an impossible position of being ‘encouraged’ to work matters out for themselves against a backdrop of blame and bitterness.

Family law professionals have been saying for years that when it comes to divorce law, the current rules are archaic and sometimes extremely cruel.  And at last, thanks to the tragic case of Tini Owens, the government has finally sat up and listened.