You may have read reports in the news this year that the law is set to change so that divorcing couples do not have to apportion ‘blame’ in order to get a divorce. Bath divorce solicitor Sarah Jackson considers whether couples should wait for the law to change.
Most family lawyers see this as a welcome and long-overdue development as we see the damage done by fault-based divorce.
Although the law hasn’t yet changed, the relevant bill has had a second reading in the Commons and it appears the new justice secretary is committed to pressing ahead with the proposed legislation. In light of this, a question I am being asked by my clients on a regular basis is “Should I wait until the law changes before I divorce?”.
The answer to this question needs to be considered with reference to the current law and the specific circumstances of each client.
The current law
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 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:
- unreasonable behaviour; and
Two are not:
- two years’ separation with consent,; or
- five years’ separation without consent.
This means that even if both spouses want a divorce, allegations of fault still need to be made unless they are prepared to wait two years and, where one spouse does not agree to a divorce, the other will need to make allegations of fault unless they are prepared to wait five years.
This requirement to apportion blame if one wishes to divorce without delay is concerning as it 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. It is a big issue as almost 60% of divorces in England and Wales result from fault-based petitions currently.
Calls for reform
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 – has been the subject of debate within the legal community for some considerable time and its a something we have considered in earlier articles.
Owens v Owens
The issue has gained particular prominence recently as a result of the case of Owens v Owens.
In this case, Tini Owens made 27 allegations of unreasonable behaviour against her husband. He opposed the divorce and the petition was rejected. The judge concluded that the marriage had broken down but that Mrs Owens’ 27 examples were flimsy and exaggerated.
The President of the Supreme Court, Lady Hale, said she found the case “very troubling” but went on to say “it is not for us to change the law laid down by parliament – our role is only to interpret and apply the law that parliament has given us.”
The result for Mrs Owens is that she must remain married until 2020, when she may apply for a fresh divorce on the basis of five years’ separation, unless the law changes in the meantime.
What is the new law?
A spouse, or both spouses if they want to apply for a divorce together, will simply need to click within an online application to indicate that their marriage has broken down irretrievably. No proof is required.
The applicant(s) will then need to wait at least 20 weeks from the date of the application before they can ask for a conditional divorce order, which is longer than it usually takes at the moment. After another six weeks, though, that order can be made final.
This means the whole process will normally take at least six months – though it will still not be possible to seek a divorce during the first year of marriage.
There are no changes to the financial consequences of divorce or arrangements for children.
Should couples wait to divorce?
Many couples decide to wait until they have been separated for two years before proceeding with a divorce so that allegations of fault can be avoided. It may be that for newly separated couples in this position the new law will come into force before the two years are up.
In the interim it is advisable to seek the advice of a specialist family law solicitor as it may be in your interests to enter into a separation agreement with your spouse setting out how you intend to regulate your finances prior to your divorce; it is not usually a good idea to divide your assets without having a formal separation agreement in place first.
For others it may be that, having taken advice, you choose to delay your separation until the law changes, for example if you wish to avoid the tax implications of a long separation.
In some cases, however, it will be necessary for a separated spouse to apply for an early divorce so that they can make an application to the court for a financial order on divorce (known as a financial remedy order). This could be where they suspect the other of hiding or dissipating assets or if they need to separate their finances without delay and settling matters by way of a formal separation agreement is either not possible or not the chosen option.
Until the law changes, this will mean making allegations of unreasonable behaviour or adultery. In light of the decision in Owens v Owens, those intending to petition for divorce on the basis of their spouse’s unreasonable behaviour will need to think carefully about the information they choose to include in their petition and may wish to seek specialist advice in this respect. It is clear that, for those of us who practice family law and are committed to promoting a constructive approach to relationship breakdown, there is a difficult balance to be struck between ensuring that an unreasonable behaviour petition will succeed if defended and helping keep divorce as amicable as possible.
It is a welcome development for the Family team at BLB that, after decades of debate on the subject, the law is finally set to make allegations of fault within divorce a thing of the past.