The issue of “no-fault” divorce has been dominating the family law world for the last few years.
Following the highly publicised case of Owens v Owens, family law professionals have campaigned for the Government to introduce new legislation to allow “no-fault” divorces in England and Wales to replace the current divorce law which is now nearly 50 years old.
Current divorce law encourages separating couples to dwell on the events of the past rather than focusing on the future. The spouse seeking the divorce must generally establish one of five facts to satisfy the sole ground for divorce – that the marriage has irretrievably broken down. Three of the five facts are based on the conduct of the other spouse (adultery, behaviour and desertion) and the other two are based instead on a period of prior separation (two years if both spouses consent to the divorce and five years if they do not).
The majority of petitioners rely on the grounds of adultery or unreasonable behaviour to avoid a wait of at least two years if the other party consents to the divorce or five years if they do not. According to research conducted by the Office of National Statistics, nearly 60% of English and Welsh divorces in 2016 were granted on the basis of adultery or behaviour so it is not difficult to understand why the current law requires reform.
A fault-based petition often fuels conflict and animosity between the parties, which can be especially problematic when children are involved. It may be quicker to proceed with a fault-based petition but it is not conducive to dissolving the marriage in such a way as to minimise the emotional impact to both parties.
It is customary for family lawyers to draft broad examples of behaviour to convince a court without inflaming the matter and jeopardising the possibility of an amicable resolution. This approach is also recommended and encouraged by the professional family law body, Resolution and was the aim of Mrs Owens when attempting to divorce her husband based on anodyne particulars of behaviour. Her case proceeded all the way to the Supreme Court where the decision remained that her divorce would not be granted due to insufficiently proving her husband’s unreasonable behaviour.
This landmark case has created the risk that family lawyers may exaggerate allegations to avoid the risk of a petition being rejected but the difficulty is that once these allegations have been made at the start of the divorce process, they almost never have any bearing on the arrangements for the children and finances that follow.
Another reason for reform is arguably the unfairness to the respondent. The majority of divorces involve allegations of fault, but the court has no ability to test the allegations which can result in the respondent feeling overlooked when the court appears to accept the allegations at face value. The reality is that only a small number of divorces are ever contested (or ‘defended’), due to the significant cost involved and usually it is not the case that the respondent wishes to prevent the divorce from going ahead, but simply that they do not agree to the allegations made against them.
The new Divorce, Dissolution and Separation Bill proposes to retain the sole ground for divorce – the irretrievable breakdown of the marriage – and to replace the current ‘five facts’, with a Statement of Irretrievable Breakdown. Following the production of this statement to the court there will be a minimum waiting period of six months from the date of the petition to the final order in the divorce.
The idea behind the minimum waiting period of six months is to provide everyone involved with time to reflect and if possible, to reconcile. It is hoped that by taking fault out of the equation as far as possible, parties will be able to focus on what really matters.
As part of the proposed Bill, the government intends to make provision for joint applications which would reflect the reality that for many couples the decision to divorce is a joint one. The ability to file a joint petition would enable the parties to adopt a more conciliatory approach to resolving the other aspects of their separation.
Another change will be to remove the ability to contest a divorce. The Government response to the Bill agrees that “the proposal does not remove the ability to contest the divorce entirely and an application can still be challenged on the basis of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance”.
As a family lawyer, my role often involves navigating the client through a maze of legal jargon that some people find difficult to understand. The Government has proposed to modernise the language within the divorce process by replacing the words petitioner, Decree Nisi and Decree Absolute, with applicant, conditional order and final order (arguably this is no less confusing though).
Many critics of the new proposals argue that the new proposed process of filing a Statement of Irretrievable Breakdown and waiting out a six-month period will make divorce too easy. On the contrary, it could be argued that the fault-based facts of adultery and unreasonable behaviour are used more widely in an attempt to obtain a quicker divorce.
So how soon could this become a reality? The Bill is currently awaiting its third and final reading in the House of Commons before it is passed to the House of Lords where the process is repeated. Watch this space, the Government may well have its hands full prior to 31 October 2019 and even then…