On 9 April 2019 David Gauke, the Justice Secretary, announced the Government’s intention to introduce no-fault divorce as soon as possible, probably within the next three months.
Under our present divorce law, set out in the Matrimonial Causes Act 1973, a person applying for a divorce must establish one or more of five facts, in order to establish the irretrievable breakdown of the couple’s marriage, which is the only ground for divorce. Three of these “facts” are based on the other spouse’s conduct - adultery, unreasonable behaviour and desertion for two years or more. The remaining two “facts” require periods of separation of at least two years (if the other spouse agrees to a divorce) or five years’ separation, whether or not the other spouse agrees.
In reality, a marriage is over when one of the partners comes to the difficult decision that it has broken down irreparably and sadly there is very little the other spouse can do in this situation to save the marriage. Most people do not want to wait a minimum of two years before they can begin divorce proceedings. For this reason, rather than relying on two years’ separation, which is the most civilised basis for divorce, the majority of divorce petitions are conduct-based and unreasonable behaviour is the most usual fact relied on to establish the irretrievable breakdown of the marriage. This involves the distasteful process of condensing the history of the couple’s marriage into about four or six very one-sided paragraphs in the statement of case in the divorce petition. This serves no useful purpose and the parties’ conduct is nearly always ignored when the financial aspects of the divorce are decided.
Moreover, however sensitively drafted and anodyne these behaviour particulars may be from a lawyer’s point of view, they will invariably be hurtful and upsetting to the other spouse and only serve to increase the emotional distress, as well as legal costs on both sides, whilst the lawyers bat the draft divorce petition to and fro, as they attempt to agree on behaviour particulars mild enough to be acceptable to the receiving spouse and sufficiently unreasonable to enable the divorce to go through without being rejected by the court. This sets the couple apart and is a poor basis for future negotiations about all the important issues arising out of the breakdown of the marriage, as well as being very detrimental to the couple’s future co-parenting where there are children of the marriage.
Proposed new law
Under the new law, irretrievable breakdown of the marriage will remain the only ground for divorce. However, the five facts will be replaced by a notification process of the intention to divorce by either spouse, or both of them. A divorce will be granted six months after the court has been notified of the intention to divorce. A reluctant spouse will no longer be able to contest the divorce proceedings and hold up the process of obtaining the divorce as well as resolution of the financial aspects of the divorce which depend on the divorce having reached the stage of decree nisi.
Reform: a long time coming
This reform of our divorce law is long overdue. In 1990 the Law Commission published a report recommending no fault divorce and proposing that the irretrievable breakdown of a marriage should be established by a period of separation, allowing a couple to consider the practical consequences of divorce and reflect on whether their marital breakdown was irreparable. No fault divorce, as recommended by the Law Commission, was included in Part II of the Family Law Act 1996 and passed by Parliament, when John Major was Prime Minister of the then Conservative Government.
Unfortunately, despite support for the proposed reform by the then Lord Chancellor, Lord Mackay, politicians of all parties, most family lawyers, relationship experts and senior members of the Church of England, it was strongly opposed by powerful reactionary forces, including the Tory leader in the House of Lords, Baroness Young, and was the subject of a hostile campaign by a tabloid newspaper. In the end, the relevant part of the 1996 Act was never introduced into law and it was subsequently repealed by the Labour Government, under Tony Blair.
Over the last three years a well-organised campaign to change the existing divorce law to remove the requirement of fault was conducted by Resolution, the well-respected campaigning organisation of family law professionals, and The Times, amongst others. There was also support for this important law reform from the most senior members of the judiciary, including Baroness Hale, now President of the Supreme Court and the former President of the Family Division, Sir James Munby.
The need for this reform was highlighted by the case of a wealthy Gloucestershire couple, Tini and Hugh Owens, which went all the way to the Supreme Court in 2017 and caught the public imagination. Mr Owens defended the divorce proceedings brought by his estranged wife, after nearly 40 years of marriage. Mrs Owens was unsuccessful in persuading the court that her husband’s marital conduct had been sufficiently serious to amount to behaviour such that it would be unreasonable to expect her to live with him. The Supreme Court were unable to help Mrs Owens, even though the couple were living apart and their marriage had clearly broken down. This means that (but for the proposed change in the law) she will have to wait until February 2020, when the couple will have been separated for five years, to obtain a divorce, leaving her trapped in a loveless marriage until then. The Supreme Court asked Parliament to change the law to allow couples to divorce without making allegations about the other spouse’s conduct. The Government have now responded to this request and hopefully the law will soon be changed to end “the blame game” in divorce proceedings.