The British government announced at the beginning of April 2019 that divorce laws would be reformed and fault-based divorce will be abolished. These reforms have come of the back of many years of pressure from senior family law judges, Resolution, the Law Commission, and most family law Solicitors.
The current divorce laws
At present, the only ground for divorce is that your marriage has irretrievably broken down due to:
- Unreasonable behaviour
- Two years separation (with consent)
- Five years separation (no consent required)
Around 60% of divorcing couples in England and Wales cite adultery or unreasonable behaviour as the cause of the irretrievable breakdown of their marriage. The spouse petitioning for divorce must provide examples of adulterous behaviour or unreasonable behaviour on the divorce petition, which is received by the other spouse. This can result in animosity between the couple at a time where they must work together to separate their lives and support their children through the separation.
Insisting couples are forced to ‘blame’ each other should they wish to extract themselves from their marriage quickly goes against the entire of ethos of family law in England and Wales which is to encourage couples to work out matters outside of Court. It is very difficult to expect couples to behave in a respectful and non-confrontational way when to end their relationship, they must point out what they perceive as the failings of their spouse in a public document.
Owens v Owens
Another factor which makes fault-based divorce so destructive to the emotions of those going through the breakdown of a marriage is that the Respondent (the person receiving the divorce petition) can choose to defend the divorce. This happened in the high-profile case of Owens v Owens. Briefly, Tini Owens wished to divorce her husband for unreasonable behaviour. Her husband took the unusual step of defending her petition. This forced the Court to assess whether Mrs Owen’s claims of Mr Owen’s unreasonable behaviour where in fact enough to justify ending the marriage. The High Court, Court of Appeal, and Supreme Court all held that they were not.
The judges’ decisions were not formed out of a wish to deny Mrs Owens a divorce – there hands were tied by the legislation. Lady Hale, the Court’s President, called it “a very troubling case”. Lord Wilson and Lord Mance shared “uneasy feelings”.
The only limited arguments against ending fault-based divorce has been from a few Conservative MPs who state that such as move invalidates the sanctity of marriage and may encourage more couples to call it quits. However, evidence from countries which moved to no fault divorce many years ago shows that such arguments are completely unfounded.
There has been, however, plenty of reports showing the distress and conflict which can arise through fault-based divorce.
What will the changes to divorce law entail?
Under the proposed changes, irretrievable breakdown of the marriage will be the only ground for divorce. However, couples will not need to provide evidence of reasons for the breakdown of their marriage, such as proof of adultery or examples of unreasonable behaviour. Instead one party will simply need to provide a statement saying the marriage has irretrievably broken down. The ability to defend a divorce, as in the case of Owens v Owens is to be removed. A couple will also be able to issue divorce proceedings jointly as well as separately. Finally, there will be a minimum timeframe of six months (26 weeks) from issuing the divorce petition to the granting of the decree absolute. This timeframe is viewed as an opportunity for couples to reflect on their decision and “turn back” if they feel they wish to try again.
When will the law be changed?
The government has stated that new legislation to implement the reforms will be introduced as soon as Parliamentary time allows. With Brexit now delayed until 31 October 2019, domestic legislative reform which has been put on the backburner is likely to be brought forth.
We will keep you updated as to the progress of this dramatic change in divorce law. In the meantime, if you have any questions about divorce, please contact our team on 01271 314 904.