The government has announced plans to reform the divorce laws in England and Wales, finally bowing to public pressure and advice from experts, all calling for the introduction of a no-fault divorce.
Following the end of a consultation period that started in September 2018, Justice secretary David Gauke has confirmed he will bring in legislation enacting the reform, in the next session of parliament.
Bad but not bad enough
Demands for change gathered momentum after the Tini Owens case in July 2018 when after 40 years of marriage, she filed for divorce on the grounds that her husband’s unreasonable behaviour had caused the irretrievable breakdown of their marriage.
Whilst the petition contained typical examples of his poor behaviour, including not showing love and affection to his wife, along with being argumentative and moody, whilst failing to support his wife in her role as a home maker, the petition was dismissed.
This initial decision was appealed by Mrs Owens, but this too was rejected because ‘in law’ the marriage was not irretrievably broken down. When her case was finally heard in the Supreme Court, it was once again rejected and Mrs Owens was not granted the divorce she wanted.
In fact, the Supreme Court ruled that she must wait a further five years before she could divorce her husband, as his behaviour had not been bad enough.
However, this decision troubled the judges involved and whilst everyone accepts they had interpreted the law correctly, the case appears to have been the catalyst for the forthcoming changes, given the largely unsatisfactory outcome.
Time for change
The laws governing marriage were laid out under the Matrimonial Causes Act 1973 and little has changed in the intervening 46 years. Until the changes take effect, a spouse must prove their partner is at fault through adultery, desertion or unreasonable behaviour for divorce proceedings to start.
If a couple want a divorce and neither party admit blame, they must live apart for two years. If one spouse does not agree to end the marriage, they must live apart for five years before a divorce is granted, much like the outcome in the Owens’ case.
Being able to apply for a no-fault divorce will spare couples the emotional stress and strain of finding blame for an unreasonable behaviour petition, or when they can’t or don’t want to wait two years to divorce on the grounds of separation.
Sometimes, people just grow apart and it must be remembered that after a divorce there is still a family that has to function for everyone. By avoiding a process that encourages hostility, these new proposals will help achieve a more positive future for most.
Cool off and reflect
The new laws will include a minimum timeframe of six months from petition stage to a marriage being ended, which has been designed to allow couples to reflect on their decision. Also, under the new proposals, a spouse will be unable to refuse a divorce if their partner requests one.
This shift of focus from apportioning blame to one of resolution and mediation is essential for everyone involved in a divorce, including any dependents, who often suffer the most during an acrimonious split.
It is hoped that removing the need to highlight bad behaviour or regrettable incidents from the past will make the whole process quicker and less emotional.
Some commentators have argued that the changes will increase divorce rates and perhaps only time will tell, but in countries that have had no-fault divorce for many years, like Sweden, rates have actually dropped slightly, which is encouraging.
Along with the expected changes, keeping the year-and-a-day rule would be a good idea as it will ensure couples do not give up on their marriage too quickly at the first sign of trouble.
While we await the introduction of the new laws, if you would like to discuss your personal circumstances in more detail and understand what options are available to you, please speak to Laura Lambert a senior associate in our Family team on 01543 431996 or email her at firstname.lastname@example.org