No Fault Divorce – Close To Becoming A Reality

9th June ‘20
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Yesterday was the second reading of the Divorce, Dissolution & Separation Bill (“the Bill”) in the House of Commons. The Bill passed the second reading, and if it becomes law, will mean important changes to the legal process for married couples seeking a divorce, for civil partners wishing to dissolve their civil partnership, or for obtaining a judicial separation.

In focusing specifically on divorce, the Bill, once it becomes law, aims to make the legal process in divorce kinder and minimise conflict which the current law fails to do.

The current legal position on divorce

In England & Wales there is only one ground for divorce which is the irretrievable breakdown of the marriage. However, the family court is unable to grant a divorce unless the petitioner (the individual who applies for divorce) proves one of the five facts set out in the Matrimonial Causes Act 1973. These facts are:

  • Adultery – The respondent (the individual responding to the petitioner’s divorce application) committed adultery and the petitioner finds it intolerable to live with the respondent.
  • Unreasonable behaviour – The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
  • Desertion – The respondent has deserted the petitioner for a continuous period of at least two years immediately before the petition is filed at the family court.
  • Two years’ separation with the consent of the respondent – The parties have lived apart for a continuous period of at least two years immediately before the petition is filed at court and the respondent consents to the divorce application being granted.
  • Five years’ separation – The parties must have lived apart for a continuous period of at least five years immediately before the petition is filed at the family court. No consent from the respondent is required.

The problem with the current law is that it provides an incentive for one party during the marriage to make allegations about the other party when are not prepared to wait for a divorce on the basis of at least two years of separation. This in itself can lay down the foundations for conflict and acrimony during the legal process and afterwards between the parties. This can be especially damaging for any children of the relationship who are then exposed to that conflict.

Even if a party did wait two years after separation to apply for a divorce, because they do not wish to impose blame on the other party, that still may not be enough to secure a divorce if desertion does not apply and the respondent chooses not to give their consent to the divorce application. You could then be waiting five years after the date of separation before being able to secure a divorce which seems completely unfair.

What has prompted the change to the law?

For many years, Resolution has led the campaign to make no fault divorce a reality and their contribution can’t be ignored. Yet, what really appeared to bring the current law of divorce to the attention of the public, media and politicians was the case of Owens v Owens heard in the Supreme Court in July 2018.

At time of judgement, Mr Owens was 80 years old and Mrs Owens was age 68. They married in 1978. Mrs Owens petitioned for divorce in May 2015 after moving out of the family home in February of that year. She relied on the fact of Mr Owens’ unreasonable behaviour and provided examples within her petition. Mr Owens chose to defend the petition arguing the examples given by Mrs Owens did not satisfy the test for unreasonable behaviour.

The judge at first instance found in favour of Mr Owens, stating that the behaviour she had described about Mr Owens in her petition was that of a kind to be expected in a marriage. When the case eventually reached the Supreme Court they concluded, I would say reluctantly, that the original judge had applied the law correctly. Thus, the outcome in the Supreme Court resulted in Mrs Owens’ petition being dismissed and she was forced to remain married to Mr Owens until five years after their separation.

The response from the public to the decision largely appeared to be one of sympathy for Mrs Owens and from there we have seen a real momentum in support for divorce reform.  According to a YouGov poll in 2019, 73% of the public supported divorce law reform.

Mrs Owens may have lost in the Supreme Court, but her actions in taking her case to the highest court in England & Wales appeared to have secured a much greater victory by bringing the need for divorce reform to the attention of the public.

What are some of the key changes the Bill propose is made to the legal requirements and process for divorce?

  1. Retain the sole ground of irretrievable breakdown but replace the requirement to provide supporting evidence of a conduct or separation fact with a new requirement to provide a statement of irretrievable breakdown. No further evidence will be required.
  2. Remove the possibility of contesting the decision to divorce. The family court will take the statement of irretrievable breakdown to be conclusive evidence that the marriage has broken down irretrievably.
  3. Introduce a new minimum period of 20 weeks between the start of proceedings and confirmation to the court that the conditional order should be made and retain the current minimum timeframe of six weeks between conditional order and final order. The divorce process will therefore take a minimum of six months to allow a period of reflection before the marriage comes to an end.
  4. Introduce a new option of a joint application for cases where the decision to divorce is a mutual one. The current ability of one spouse only to initiate the legal process of divorce will be retained.

Will the Bill be opposed and when will it become law?

The Bill certainly has the support of politicians and so far is enjoying cross-party political backing meaning it is now almost certain the Bill will be turned into law.  When the Bill will actually become law and be applied in practice, is not yet clear but we could be looking at weeks as opposed to months or years.

If you require support or guidance, do not hesitate to contact Naheed Taj, Head of Family at Calibrate Law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. 

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