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We last reported on the topic of no-fault divorce in October of last year following the sad case of Tini Owens. The case highlighted a longstanding problem with divorce law which forces parties to find blame if they want to guarantee that the court can give permission for a divorce. Mrs Owens found herself in the ludicrous situation of trying to leave a loveless marriage described as “wretched” by one judge, however it was not found to be wretched enough to satisfy the irretrievable breakdown requirement of current divorce legislation.
Partly as a result of the publicity that the Owens case generated, a consultation was started by the Ministry of Justice in September 2018 to explore options for creating a less controversial divorce process. The government has now confirmed that it will introduce legislation to overhaul the divorce system “as soon as parliamentary time allows”.
Changes to our current divorce law are long overdue, and this will be the first major overhaul to the law of divorce in over 40 years. The current law which encourages parties to apportion blame for a marriage breakdown is based on the Matrimonial Causes Act 1973. This act will either have to be amended or it may be repealed and replaced with a new Act of Parliament.
Some of the changes which have been confirmed include the new divorce law removing a party’s right to contest a divorce. This aspect will be controversial with many religious pressure groups, but as very few divorce petitions are seriously contested, the removal of the right to defend is unlikely to cause significant problems in practice. Under the current law, if a divorce is contested, then apart from proving the other side is at fault, a couple have to live apart for more than five years. Arguably the right to contest a divorce has not been used as a means of saving a failing marriage but as a negotiation tool when dealing with children and finances.
It has also been confirmed that any new divorce law will remove the need to show “fault”. In a modern society, having a system that either encourages confrontation or ties a party into a marriage for years is out of step with the times. It can also be noted that any changes will apply to both marriages and civil partnerships.
Putting some more detail on the proposed changes, the Ministry of Justice also confirmed that couples will have a minimum six-month period to “allow for reflection”. This may help satisfy some critics that changes to the law are not intended to create a system of “quickie” divorces.
The intention to reduce family conflict on separation must be a good thing, but the politicians will weight this up with the possibility that changes might “encourage” more couples to separate. If we look at the law in Scotland in 2006, the Scottish Parliament introduced no-fault divorce where a couple had lived apart for one year. When the law was introduced there was a spike in the number of divorces, but this has since settled down. There are actually now fewer divorces in Scotland but the figures may be misleading as there are also fewer marriages. A better insight into the effects of changing the law can be found in the reasons stated by people who are divorcing. In Scotland in 2015 only 6% of divorcing couples relied on fault-based grounds such as adultery or unreasonable behaviour. This was a reduction from the 20% who sited fault-based grounds before the law changed. In England and Wales a much higher number of divorces were linked to fault-based grounds (60%). The English system has a much higher rate of fault-based divorce because this is the quickest route currently available.
There is no perfect answer for how the law on divorce should be reformed, but it must be better to have a system that does not encourage parties to blame each other. David Gauke, the Justice Secretary, emphasised this when he confirmed that the reforms were intended to help end the “blame game” for divorcing couples. He also highlighted the reality about any system of divorce when he said:
“Frankly, we are not going to keep marriages together by having a divorce process that just makes it more acrimonious [and] tries to apportion blame in such a way that the couple are likely to have a weaker, poorer relationship subsequently than they would otherwise do.”