No fault divorce: A step in the right direction or a step too far?

  1. The Government has announced that it intends to reconsider how married couples can seek to divorce

    THE CURRENT LAW

  2. The current law in relation to divorce is set out in the Matrimonial Causes Act 1973. At present, those wishing to divorce may only do so if the marriage has ‘irretrievably broken down’. To apply for a divorce a petitioner must rely on one of 5 grounds:
    i) Adultery;
    ii) Desertion;
    iii) Separation of 2 years duration - with the consent of the other party;
    iv) Separation of 5 years duration - without the consent of the other party; or,
    v) Unreasonable behaviour.
     
  3. Unreasonable behaviour has for many years been seen as the ‘catch all’ ground upon which many couples rely. The problem with this route, is that it means that one party has to take the blame for the breakdown of the marriage, and allow the other to set out to the court their ‘unreasonable behaviour’.
     
  4. However, in the midst of the breakdown of a marriage, both parties are normally able to point to examples of the other’s behaviour that they believe is unreasonable. The question then becomes who is to take the blame? It can often be hugely symbolic to the parties, with an acute emotional significance attached. Therefore, right from the moment of deciding who is the petitioner, someone has to take the role of the ‘bad guy’.
     
  5. Once the ‘bad guy’ has been selected, attention then turns to what ‘unreasonable behaviour’ is to be presented to the Court. In some cases, couples simply drift apart, nothing overly dramatic has occurred and it is nobody’s fault. At this point such couples, are faced with trying to scrabble together grounds on which the Court should grant a divorce.  
     
  6. Students of family law will no doubt remember some of the more bizarre examples of unreasonable behaviour, the court have accepted over the years in order to grant a divorce, such as:

    i) A husband who wished to renovate the family home himself, and amongst other DIY related disasters, left the toilet without a door for 8 months, embarrassing his wife and daughter: O’Neill V O’ Neill [1975];
    ii) It was unreasonable for a husband to expect his wife to spend hours every night tickling his feet: Lines v Lines [1963];
    iii) A husband’s submissive character and refusal to argue with the wife infuriated her: Le Brocq v Le Brocq [1964];
     

  7. The consequences of attributing blame are that it often increases hostility, and further damages any remaining relationship between the parties.  This is particularly harmful when the couple have children, and will need to work together in the future.
     
  8. The current process, in which a petitioner presents the ‘unreasonable behaviour’ to the Court, and a Judge accepts whatever grounds have been drafted on the standardised form, is likely to have continued unchallenged, but for the case of Owens v Owens [2018] UKSC 41.
     
  9. The case caught the public attention, when Mrs Owens, a woman in her late 60’s, sought to divorce her husband and leave what she described as a ‘loveless’ and ‘broken down’ marriage. The husband did not agree that a divorce should be granted, and the Judge at first instance took the unusual step of refusing to accept Mrs Owens grounds as unreasonable behaviour.  
     
  10. Appeals to higher courts followed, and the Supreme Court ruled in July 2018 that Mrs Owens could not have her divorce. It should be noted that Lord Wilson made it clear that the court has come to the ruling “with reluctance”, and openly questioned Parliament as to whether the law remains satisfactory.  The consequence of the ruling is that Ms Owens must remain married to her husband until 2020, when she can seek a divorce on the grounds of 5 years separation, without consent.
     
  11. There is widespread support for a change in the law. Nigel Shepherd, Chairman of Resolution, has been quoted as saying “that couples have been forced into needless acrimony and conflict” under the current system “to satisfy an outdated legal requirement”.
     
  12. Christina Blacklaws, the President of the Law Society, has also supported change and has commented that “making couples attribute fault in order to end their marriage can escalate the differences between them in an already charges situation.”
     
  13. In October 2017, the report of a Nuffield Foundation funded research project, led by Professor Liz Trinder of Exeter University, recommended removing fault entirely from divorce law and replacing it with a notification system. The report concluded that it was time for the law to be reformed to address the mismatch between law and practice.

    ARGUMENTS AGAINST CHANGE

  14. There has already been an attempt to modernise the law in 1996. The Family Law Act 1996 allowed for no-fault divorce, however the legislation was abandoned after significant resistance from those who felt the institution of marriage was being undermined.
     
  15. Opponents of any change have already started to campaign that any change will mean that more couples seek to divorce. Last year approximately 110,000 people petitioned for divorce in England and Wales, opponents fear such a number will dramatically increase.

    THE GOVERNMENT CONSULTATION

  16. The Government have now announced a consultation to review the way in which couples can obtain a divorce. The Justice Secretary David Gauke, has commented that he wants to “reduce the antagonism of citing fault and the anxiety it creates”. The consultation period has begun and will close on 10 December 2018.
     
  17. The government has highlighted a number of proposals such as:
    i) Creating a new process to allow people to notify the court of the intent to divorce;
    ii) Removing the opportunity for the other spouse to contest a divorce;
    iii) Keeping the sole ground for divorce as the irretrievable breakdown of marriage and removing the need to show evidence of the other spouse’s conduct or a period of separation; and,
    iv) Reviewing the minimum timeframe between the interim decree of divorce (decree Nisi) and the final decree of divorce (decree absolute).

    THE FUTURE

  18. The Government’s position is that it may consider a change to the law on divorce, as part of a wider review of family justice. There is therefore no guarantee that they will act upon the recommendations / findings of the consultation.
     
  19. Many commentators believe that what is needed is new legislation to remove ‘fault’ from divorce entirely, and that government should look to do this as a matter of some urgency, not as part of a wider sweeping reform that could take decades.  As such it is hoped that as many interested parties as possible will respond to the consultation, emphasising the pressing need for change.

 

Victoria Ellis