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Changes to Divorce – UK Government proposes “no-fault” divorces

Posted by Gunes Saybak on October 02, 2018

What is the current law on divorce?

Under the current UK law, the only ground for divorce is that the marriage has irretrievably broken down.

In order to demonstrate this, an individual (the Petitioner) applying for divorce will need to satisfy the court of one or more of five facts:

  • The Respondent has committed adultery
  • The Respondent has behaved unreasonably
  • The Respondent has deserted the Petitioner
  • The parties have been separated for two years (if both parties agree)
  • In the absences of the above scenarios, the parties must wait until they have been separated for five years (if the parties cannot agree)

Whether an application for divorce is made by living apart for a substantial period of time or making an allegation about their spouse’s conduct, both routes equally cause further stress and upset for the parties, as well as any children involved.

In 2016, the Central Family Court refused to grant a Petitioner (Mrs. Owens) a decree nisi of divorce (allowing a divorce to proceed), despite finding that the marriage had broken down. The Respondent had defended the divorce and the judge found that the Petitioner had failed to prove, by law, that the Respondent had behaved in such a way that she could not reasonably be expected to live with him. The Petitioner was forced to stay in her loveless marriage until a period of five years had elapsed.

The Petitioner’s appeals to the Court of Appeal in 2017 (Owens v Owens [2017] EWCA Civ 182), and the Supreme Court in 2018 (Owens v Owens [2018] UKSC 4) were both unsuccessful.

In the Court of Appeal, “with no enthusiasm whatsoever”, Lady Justice Hallett agreed to dismiss the appeal with the judgement noting:

…this court cannot overturn a decision of a trial judge who has applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis we dislike the consequence of his decision.

In the Supreme Court, Lord Wilson acknowledged that the appeal gave rise to “uneasy feelings”. He said that it was for Parliament to consider whether the law should be changed stating

“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”

What is the Government proposing?

In July 2018, a Bill was introduced, requiring the Lord Chancellor to review the law relating to divorce and judicial separation and to the dissolution of civil partnerships and the separation of civil partners. The review included consideration of whether the law should be changed so that irretrievable breakdown of a marriage or civil partnership is evidenced solely by a system of application and notification and no requirement to demonstrate fault. Previously, in 2015, a Ten Minute Rule Bill aimed to allow no-fault divorce came around. However that Bill, did not proceed any further.

On 15th September 2018, the Ministry of Justice published a consultation entitled “Reform of the legal requirements of divorce”. This announced:

The Government … proposes to reform the legal requirements for divorce so that it is consistent with the approach taken in other areas of family law, and to shift the focus from blame and recrimination to support adults better to focus on making arrangements for their own futures and for their children’s. The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course; and to make sure that divorcing couples are not put through legal requirements which do not serve their or society’s interests and which can lead to conflict and accordingly poor outcomes for children.

This consultation proposes adjusting what the law requires to bring a legal end to a marriage that has broken down irretrievably. This adjustment includes removing the ability to allege “fault”. The consultation seeks views on the detail of how best to change the law to reduce family conflict and strengthen family responsibility.

The consultation is due to close on 10th December 2018.

Descartes Solicitors intends to respond to the consultation and will keep you updated on the status of the consultations as they are published.