In the light of recent much-publicised cases, there have been calls for reforms aimed at introducing a no fault divorce procedure.
A marriage breakdown is a difficult time for all concerned, particularly when children are involved.
Under the existing law applied in England and Wales, couples must spend a considerable time living apart or make allegations about the other party’s behaviour, often seen as showing fault on the part of one spouse.
No fault divorce
In September last year, the Ministry of Justice published a paper aimed at reducing family conflict and reforming the legal requirements for divorce. The proposals would ensure the requirements for divorce would be consistent with the approach taken in other areas of Family Law.
This would include the objectives of introducing a considered attitude to divorce and ensuring that couples do not have to abide by laws which are inconsistent with society’s interests and which can lead to poor outcomes for children.
Currently, those applying for a divorce need to prove that the marriage has broken down. Five categories are covered, Adultery, Unreasonable Behaviour, Desertion, Two Years Separation where both parties agree to the divorce and finally Five Years Separation when one of the partners disagrees with the dissolution.
Introducing the new proposals would see the first three categories disappear. Spouses will also lose the right to contest such a divorce under a new 12-week consultation period.
The new legislation would make the irretrievable breakdown of marriage the sole grounds for divorce, meaning that there would be no need to prove a partner’s misconduct or to provide evidence of living apart. The changes would affect heterosexual and gay marriages as well as civil partnerships.
No fault divorce in other jurisdictions
The consensual agreement between parties will be largely unaffected, but the issue of five years separation has been highlighted by the case of Owens v Owens, which was heard by the Supreme Court in July 2018. In this matter, the husband opposed his wife’s request to dissolve the marriage after 40 years.
Under the current law, the plaintiff had to prove fault in the absence of agreement or that they had lived apart for five years under the Matrimonial Causes Act 1973. In this case, the couple had only lived separate lives for three years.
Although the Court held that they must remain married and the judgement was unanimous in refusing a divorce, Lord Wilson encouraged Parliament to look at the law governing entitlement to the dissolution of marriage. The Supreme Court President, Lady Hale, agreed with Lord Wilson’s legal analysis.
Similar legislation exists in other countries but often has caveats. In Australia, since 1975, the only grounds for divorce is an irretrievable breakdown but is evidenced by a 12-month separation period. A residual fault element remains in relation to children and financial matters. In Germany since 1976, no fault divorce has been the norm.
The Supreme Court decision and the comments included in the judgements have prompted Parliament to look at the issue anew, but the consultation period may have thrown up some matters which will need to be addressed.
Religious community concerns will have been raised, and those who see the sanctity of marriage threatened will be concerned.
There is little doubt, however, that the Supreme Court has indicated that it feels that a piece of legislation which is over 50-years-old is no longer fit for today’s society.
Nonetheless, the reality of divorce is complex. Legislators will have to adopt a sensitive approach when introducing a new no fault divorce statute.