It may surprise you that the current law in England and Wales dictates that the only ground for divorce is that a marriage “has irretrievably broken down”. That one party simply wants a divorce is not in itself sufficient.
THE CURRENT LAW
The current law dates back to 1973. The relevant statute is the Matrimonial Causes Act 1973, which states that for a marriage to have irretrievably broken down, one of five facts must be proved. Three are fault based – adultery, unreasonable behaviour and desertion. Two are not – two years’ separation with consent, or five years’ separation without consent.
59.3% of divorces in England and Wales result from fault-based petitions.
OWENS v OWENS
The requirement for the apportionment of blame to obtain a divorce where a couple have been separated for less than two years – or for less than five years if the other spouse does not consent to a divorce – hasbeen the subject of debate within the legal community for some time and has gained prominence recently due to the on-going case of Owens v Owens.
In 2016 the family court ruled that Tini Owens, who describes herself as being “desperately unhappy” in her “loveless marriage”, could not divorce her husband. This was despite his alleged “unreasonable behaviour” and her affair with another man. Why? Because her husband was able to successfully argue that despite all of this, their marriage had not broken down irretrievably. This ruling was later backed up by the Court of Appeal.
The fight is now going to the Supreme Court, where Mrs Owens’ barrister will argue that this need to prove “unreasonable behaviour” is wrong and in reality nothing more than a “linguistic trap” stemming from current legislation. The outcome has the potential to affect thousands of UK couples.
ATTEMPTS TO REFORM
The argument for the need for ‘no-fault divorce’ is not a new one.
Part 2 of the Family Law Act 1996 looked to introduce the idea of no-fault divorce, stating that the hope was to “reduce the bitterness of divorce” and its “damaging impact”. However, in 2001 the Government concluded that these provisions were “unworkable”.
Concerns included the need to uphold the institution of marriage. A pilot scheme designed to test six possible models for mandatory information meetings, which couples would be forced to attend, was also deemed to have delivered unsatisfactory results.
As a result, the provisions were repealed in section 18 of the Children and Families Act 2014, despite the then Justice Minister Lord McNally conceding at the time that he had the “utmost respect for the position of supporting the principle of no-fault divorce”.
CURRENT GOVERNMENT POSITION
Indeed, in February 2017 Lord Keen of Elie left the door open for possible reform, but stressed that such change is not current policy: “The government is committed to improving the family justice system so separating couples can achieve the best possible
outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”
Baroness Buscombe subsequently indicated that a Green Paper with further proposals would be published “in due course”. She also added that Owens v Owens was not an especially representative case, however, stating: “… some people will not wish to divorce without being able to cite a fault, particularly if their faith requires them to do so.”
CALLS FOR CHANGE
Several people and organisations have urged the Government to return to the idea of no-fault marriage.
· In March 2014, former President of the Family Division Sir Nicholas Wall stated that he could see no good arguments against no-fault divorce.
· This was followed by similar calls from his successor Sir James Munby in April 2014, who told a press conference: “Defended divorces, contested divorced are almost invisible. They hardly ever happen nowadays so in that sense… all one’s doing is actually bringing a bit of intellectual honesty to the situation and getting rid of an unnecessary process which simply makes life more complicated…”
· In June 2014, a report from the Family Mediation Task Force called on the Government to abolish fault-based divorce, saying the existing processes were damaging.
· In December 2014, the then Deputy President of the Supreme Court Baroness Hale of Richmond told The Evening Standard that no-fault divorce was needed “to reduce the cost and acrimony of marital splits”.
· In 2015, Richard Bacon introduced a Ten Minute Rule Bill which aimed to allow for no-fault divorce, but the Bill did not proceed.
· In February 2017, Supreme Court Judge Lord Wilson of Culworth expressed his disappointment in the failure to implement no-fault divorce.
· The Labour Party’s 2017 Manifesto included a commitment to introduce no-fault divorce.
Family law organisation Resolution launched a campaign in 2015 that called for the removal of blame from the divorce process. It stated: “In 2012, there were over 72,000 divorces where adultery or unreasonable behaviour were cited. People should not have to go through this blame charade to bring their relationship to a dignified conclusion and move on with their lives. A civilised society deserves a civilised divorce process.”
RESISTANCE TO CHANGE
Despite the increasing support for the introduction of no-fault divorce within the legal community, the government has given us no reason to believe there will be legislative reform any time soon.
When looking at the possible objections to change, the comments of the former Conservative MP, Sir Edward Leigh, at the time of Richard Bacon’s Bill are illuminating. He said “All the available evidence points to the introduction of no-fault divorce having a large, widespread and demonstrable effect on the societies in which it has been introduced”, and he cited a six-fold increase in divorces in Canada just two years after no-fault divorce was introduced. He also referred to a 2009 study by the Department for Children, Schools and Families that outlined increased difficulties for children not growing up in a two-parent family.
BLB partner Sarah Jackson, based in Bristol and Bath, adds: “We see at first hand in our daily practice how the current requirement to apportion blame can result in increased hurt and hostility between separating couples, which in turn can impact on their ability to agree arrangements for their children and finances. Removing this requirement in all divorces is consistent with the government’s promotion of mediation and a conciliatory approach to resolving issues on relationship breakdown, and it would also bring our jurisdiction into line with many other jurisdictions around the world which already have a system of no-fault divorce.”
Image by Michael Coghlan under a creative commons licence