What Now For No-Fault Divorce?

Date: October 10th, 2018 - Written by: Brookman Solicitors

 

Back in June 2018 we wrote about no-fault divorce and the possible impact the case of Owens v Owens might have on the current system of divorce in England and Wales.

In June the Supreme Court was still considering the merits of Mrs. Owens’ claim that she was ‘locked’ in a 37-year marriage. The following month the court reached it’s decision. And it was not what campaigners for reform wanted.

In what has been described universally as a landmark decision, the court refused to grant Mrs. Owens a divorce on the grounds of unreasonable behaviour. For her that means she will have to wait for a divorce until she has been separated from her husband for five years. Remarks by the judges in the case however did nothing to dampen criticism of the current law. Baroness Hale, the Supreme Court president, described the case as ‘very troubling’. But she reiterated the point made by the lower courts that the role of judges is to interpret the law laid down by parliament – the judiciary can’t change the law of its own volition.

 

The Aftermath Of Owens V Owens

While some groups believe a change in the law might undermine the institution of marriage, the comments by the Supreme Court judges and the wider public debate (which suggests a majority of the public favour some form of no-fault divorce) has encouraged MPs to act.

Shortly after the judgment the Ministry of Justice confirmed it was already looking closely at reform. And last month it published a formal consultation to get the views of interested parties on how best to change the law.

 

How Might The Law Change?

At present to successfully obtain a divorce in this country you need to be able to establish one of the following five grounds to show a marriage has irretrievably broken down:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separated for more than 2 years if both sides agree to a divorce
  • Separation for at least 5 years

Mrs. Owens argued that her husband’s behaviour was unreasonable. The court found she hadn’t established this ground. In the absence of her husband’s agreement to divorce the only other ground available to her now is 5 years’ separation

The aim of the government consultation is clear. Entitled “Reducing family conflict: Reform of the legal requirements for divorce” it is an attempt to remove some of the acrimony that arises when one party to a divorce is required to blame the other for the end of the marriage.

 

The consultation paper suggests the current law is unsatisfactory for a number of reasons:

  • It works against agreement and reconciliation
  • Those seeking a divorce find it difficult to know how much evidence is necessary to prove fault. This can lead to inclusion in a divorce petition of unnecessary detail of ‘unreasonable behaviour’ that serves only to increase acrimony
  • It doesn’t positively support children

 

As a result the government proposes to:

  • Remove entirely the requirement to establish one of the five facts (see above) and replace it with a process of providing notice of irretrievable breakdown
  • Abolish, as a general rule, the ability for one party to contest the divorce
  • Introduce a minimum timeframe for divorce

 

At Brookman we deal first-hand with the often traumatic reality of relationship breakdown. So we welcome the government consultation. Its publication suggests that preserving the status quo of fault-based divorce is no longer an option. Mrs. Owns may have lost her own personal battle but it seems that her case will now act as a catalyst for the reform that many have sought for decades.

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