Changing the dynamics in divorce – ‘no-fault’ may at least reduce acrimony

Almost 110,000 people petitioned for divorce in England and Wales in 2017, with the vast majority of those petitioners forced to cast blame on their spouse. In my view this creates unnecessary acrimony, and I welcome the consultation which suggests there could be movement to address this.

As it currently stands, the grounds for divorce in England and Wales is that of marital breakdown. This element of the law is in itself not problematic as most people would not seek a divorce if the marriage was salvageable.

However, to prove this ground, to date the petitioner relies on one of these five facts:-

  1. Unreasonable behaviour of the spouse
  2. Adultery
  3. Desertion
  4. Two years separation with consent of both parties; or
  5. Five years separation where consent of both spouses is not required

Once a relationship is at an end, the vast majority of couples wish to formalise their separation by way of divorce as soon as practicable. However, the law, as it currently stands requires for the parties to continue to be a part of the marriage for at least two years without fault being attributed to one party.

The circumstances in the much publicised example of Mrs Tini Owens is one in which she finds herself in brings in to sharp focus how archaic and deficient the current law truly is. She had told the Supreme Court that her 40-year marriage to Mr Hugh Owens was “loveless” and “broken down”. She petitioned for divorce relying on her husband’s unreasonable behaviour.

Mr Owens denied Mrs Owens’ allegations which ultimately led to the matter being referred to the Supreme Court. The Supreme Court ruled against her in July, but Lord Wilson said this ruling was “with reluctance”. He said the “question for Parliament” was whether the law governing “entitlement to divorce” remained “satisfactory”.

The law therefore forces Mrs Owens to remained married for her husband until five years have passed since their separation.

In my view the current law is simply unsatisfactory as it requires spouse to lay blame at the other’s door in order to pursue a divorce or remain party to an unhappy marriage.

There seems to be a glimmer of hope for sensible reform as the Justice Secretary, David Gauke, has acknowledged that the current law is “out of touch with modern life”.

Announcing a Government consultation on divorce, he went on to say “Marriage is a hugely important institution, but when a relationship ends it cannot be right that the law creates or increases conflict between divorcing couples.

We think that the blame game that currently exists helps nobody; it creates unnecessary antagonism and anxiety at an already trying time for couples. In particular, where there are children involved it's very important that we do everything to ensure that the future relationship between the divorcing couple is as harmonious as possible.”

Proposals detailed in the consultation include: 

  • Retaining the sole ground for divorce: the irretrievable breakdown of a marriage 
  • Removing 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

The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.

It is my hope that the Government acts swiftly and brings the necessary draft legislation before Parliament as soon as possible. The current law is simply not fit for purpose and increases pressure on spouses dealing with the breakdown of their relationship.

Daniel Jones, Partner and Head of Family Law in England & Wales

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.