April 2019 saw the government agree to start legislating on what will be one of the biggest changes to divorce law since the Divorce Reform Act 1969. After years of campaigning and calls for change by many charities, practitioners and judges, following a consultation period launched in autumn 2018, the Justice Secretary David Gauke announced that the government would now legislate to introduce a no fault divorce “as soon as parliamentary time allows.”
Current divorce laws
Divorce is currently granted on the sole ground that the marriage has broken down irretrievably. In order to establish this ground, one of the following five ‘facts’ (i.e. reasons) must be proven:
- Unreasonable behaviour;
- Desertion (rarely used);
- Separation for two years with the other party’s consent;
- Separation for five years without consent.
As the current law stands under the Matrimonial Causes Act 1973, the sole ground for divorce (i.e. irretrievable breakdown) is not fault-based. However, three of the five facts that have to be proven to establish the ground are entirely fault based. While the current law allows for a no fault divorce after five years’ separation (or two with the consent of the other party), it is difficult emotionally but also, for many, it is not possible financially. As a result, many couples find themselves having to set out allegations and fault sufficient enough to establish unreasonable behaviour. This does not encourage a conciliatory approach when dealing with other matters associated with family breakdown.
The recent case that brought this issue to the forefront of the agenda was Owens v Owens . In this case, Mrs Owens moved out of the family home in February 2015 and filed for a divorce in May. Her divorce petition used the fact of unreasonable behaviour. In order to prove this, Mrs Owens had to convince the court that her husband had behaved in such a way that she could not reasonably be expected to live with him. Rather unusually, Mr Owens contested the divorce and argued that the behaviour set out by Mrs Owens in the divorce petition was not sufficient enough to satisfy this test. The judge accepted that the marriage had broken down but was tied by the law and agreed with Mr Owens that one of the facts required had not been established. The matter was appealed and rose all the way to the Supreme Court. In July 2018, the appeal was again dismissed by the Supreme Court, leaving Mrs Owens unable to divorce Mr Owens until she had been separated from him for five years.
Under the proposals that will now proceed through the legislative process, the sole ground for divorce will still be irretrievable breakdown. One party – or the couple jointly – will be required to notify the court of this in a statement but the five facts will be removed. The two-stage process of decree nisi and decree absolute will be retained, and there will be a minimum six-month timeframe to allow time for reflection. However, it will no longer be possible to contest the divorce.
Opponents of the proposed change say that no fault divorce will increase the divorce rate and undermine the institution of marriage. However, in other countries that already have a no-fault system, such as Canada and Spain, these concerns have not appeared to become a reality.
Conflict between parents
One of the main motivations for introducing no fault divorce is to try to reduce family conflict and minimise the distress caused by a relationship breakdown on the parties and their children. The current laws around divorce and child arrangements requires couples to be in two contrasting mind sets at the same time: the divorce petition pushes one spouse into alleging and proving past events in order to establish the ground for divorce. This often embeds or furthers animosity and conflict between parents, entrenching their position to see their ex-partner as the opposition and driving them further apart. At the same time, a parent who has just been required to prove fault in their spouse is then asked to work together to put in place arrangements for their children. Such a system is not conducive to child-focused and co-operative parenting.
It is hoped with the new no fault divorce, the process will encourage a more conciliatory approach at the outset, allowing couples to focus on the children’s needs and look to the future, as opposed to being forced to prove the past.