Divorce laws in England and Wales are set to undergo their biggest reform in nearly half a century. And not before time. After significant lobbying from all sides of the legal profession over many years, the government finally announced in April that reform is on the way. The impetus for change had gained significant traction thanks to much public comment from leading members of the judiciary, the Family Mediation Taskforce and Resolution, the national organisation of family lawyers, which have all argued in favour of no-fault divorce being introduced.
The concept has an interesting history. In the UK, divorce used to be governed by the church. It was rarely granted and always based on fault, invariably meaning the wife’s adultery. Until the last century, divorce was never permitted by consent and there was a strict bar on spouses colluding in order to obtain one. Calls for no-fault divorce stretch back over many years, perhaps most notably from the late Sir Nicholas Wall, former President of the Family Division.
Internationally, other countries got there long ago. The first specific no-fault divorce law was enacted in Russia in 1917 immediately after the October Revolution. China followed suit with the adoption of the New Marriage Law in 1950. California became the first US state to allow it via the Family Law Act of 1969. Today, every US state permits no-fault divorce, although requirements for obtaining one vary from state to state. Elsewhere, Australia established no-fault divorce in 1975, followed by Canada in 1986 – like much of the US, both countries require a separation period of one year.
The UK is therefore notably behind the curve in no fault divorce compared to many other countries. The government finally announced that change was imminent after a public consultation which was launched last September. The Justice Secretary, David Gauke, said that no-fault divorce would be introduced as soon as parliamentary time became available, adding that: “While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples.”
Gauke’s ‘outdated law’ is the Matrimonial Causes Act 1973, the piece of anachronistic divorce legislation which allows for petitions to proceed only if there is proof of continuous separation. The only ground for divorce is irretrievable breakdown of the marriage. Presently, any party who wants to divorce their spouse has to provide evidence that their partner is at fault.
This can be done either through adultery, desertion or unreasonable behaviour, or subject to mutual agreement by both parties, they can part after two years of continuous separation. If there is neither consent nor evidence of fault, and one spouse does not agree to the marriage being ended, then the two parties have to live apart for a period of five years before they can eventually divorce.
After nearly half a century on the statute book, the Matrimonial Causes Act is, at best, cumbersome and, some would argue, cruel since American studies have shown it leads indirectly to higher rates of suicide and domestic violence. Most commentators agree that it is out of step with modern attitudes and the reality of many broken relationships in 21st century Britain, which is an increasingly secular and pluralistic society.
So how will the new law be different in practice? The key element of the changes outlined by Gauke is the removal of the requirement to rely upon unreasonable behaviour, adultery or two years’ separation in order to demonstrate that the petitioner is automatically entitled to a divorce.
The rationale is to simplify the process and shift the emphasis from blame towards resolution. Prudently, the irretrievable breakdown concept as the sole grounds for divorce will be retained. Likewise, the two-stage process of a decree nisi followed by a decree absolute will also remain in place. But under the new legislation, all that will be required is that one or both parties has to provide a statement that the marriage has irretrievably broken down.
A six-month minimum period will be set between a petition being lodged and the divorce becoming final, which is designed to allow both parties to reflect on their decision. The new law will prevent either party from refusing a divorce if their spouse still wants one after that time has elapsed.
A new concept will be introduced allowing for a joint application for divorce, which is intended to remove unnecessary hostility and blame from the process. The government and family practitioners anticipate that this will encourage much greater consensus and, hopefully, more amicable outcomes. This will be of particular importance in helping to improve the position for the children of divorced parents.
Significantly, the new legislation will also be designed to remove the ability of one party to contest a divorce contrary to the wishes of the other. The ability of a husband or wife to contest is used less than two per cent of divorces and was relatively little-known or discussed until the considerable publicity given to the long running case of Owens v Owens, which ended last July.
The Owens case was unusual in several respects, the most notable of which is that it went as far as the Supreme Court – the only contested divorce of its kind to reach that level for several years.
Mr Owen’s lawyers argued that his wife had failed to prove that the marriage had irretrievably broken down. By a majority ruling, the judges upheld earlier rulings made by a Family Court and the Court of Appeal, namely that Mrs Owens had to remain married to a man whom she wanted to divorce because her husband would not consent to a divorce. The judges “reluctantly” told her that a joyless marriage (the Owens had been married for 40 years) was not adequate grounds for a divorce if one spouse refuses to agree.
“The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being,” the Supreme Court judge Lord Wilson said in his ruling. “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.” He added: “The Family Court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”.
The judgment made one thing clear: although the Supreme Court can interpret the law, only Parliament can change it. If the argument for reform had become compelling and urgent, the verdict and the judges’ comments in the Owens case were the key catalyst for change.
So will the new law work? Although it certainly promises to improve the situation for many divorcing couples, there are shortcomings. Most notable among them is the new proposed time limit: a minimum timeframe of six months, designed to allow couple to reflect from the date of the petition to the final divorce order/decree absolute. This does not, however, go far enough. Once someone has made the decision to petition for divorce, even six months may well feel like too long to wait.
Lindsay Yateman, solicitor at Excello Law.