After sustained lobbying from all sides, the government finally announced in April that divorce laws in England and Wales will be reformed and updated. The impetus for reform has gathered significant momentum over recent years. Prominent members of the judiciary, the Family Mediation Taskforce and Resolution, the national organisation of family lawyers, have all argued in favour of no-fault divorce.
The government announced the changes in response to a public consultation which began last September. Justice secretary David Gauke said that as soon as parliamentary time became available, no-fault divorce would be introduced. He added: “While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.”
The outdated law to which he was referring is the Matrimonial Causes Act 1973. Currently, anyone who is seeking a divorce has to provide evidence that their partner is at fault either through adultery, desertion or unreasonable behaviour – or if both sides agree, they can then part after two years of separation. Without consent or evidence of fault, if one spouse does not agree to the marriage being ended, the two parties must live apart for five years before they can divorce.
After nearly 50 years on the statute book, the current law is unwieldy and woefully out of sync with contemporary attitudes and the reality of relationships in 21st century Britain. The key element of the changes outlined by Gauke is to remove the requirement of having to rely upon unreasonable behaviour, adultery or two years’ separation in order to demonstrate that the petitioner is automatically entitled to a divorce.
So how will the new law be different in practice? Essentially, it simplifies the process and shifts the emphasis from blame to resolution. The irretrievable breakdown concept as the sole grounds for divorce will be retained, as will the two-stage process of a decree nisi followed by a decree absolute. But in future, all that will be required is for one or both parties to provide a statement that the marriage has irretrievably broken down.
Designed to allow both parties to reflect on their decision, there will be a six-month minimum period between a petition being lodged and the divorce becoming final. But the new law will also prevent people from refusing a divorce if their spouse still wants one after that time has elapsed.
It will further introduce a new concept where there can be a joint application for divorce, which is intended to remove unnecessary hostility and blame. The government and family practitioners hope that this will encourage greater consensus and more amicable outcomes – in particular, helping to ameliorate the position for the children of divorced parents.
Critically, the new legislation will also remove the ability of one party to contest a divorce against the wishes of the other. Although the ability of a husband or wife to contest is used less than 2 per cent of divorces, this avenue was given considerable publicity by the long running case, Owens v Owens, which ended last year.
The Owens case was unusual because it reached the Supreme Court – the only contested divorce to do so for several years. By a majority ruling, the judges upheld earlier rulings by a family court and the court of appeal: that Mrs Owens had to remain married to a man whom she wanted to divorce because her husband would not consent to a divorce. The judges “reluctantly” told her that a joyless marriage was not adequate grounds for a divorce if one spouse refuses to agree. Through his lawyers, Mr Owens argued that his wife has failed to prove that the marriage had irretrievably broken down.
“The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being,” the supreme court judge Lord Wilson said in his ruling. “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.” He added: The Family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”.
The verdict and the judges’ comments in the Owens case were the key catalyst for change. Although the new legislation will introduce a minimum timeframe of six months, giving couples time to reflect from petition to the final divorce order/decree absolute, it does not however, go far enough. Once someone has made the decision to petition for divorce even six months will feel like too long to wait.
Published in Lawyer Monthly – May 19