The introduction of “No fault” divorce – the end of the Blame game
After 30 years of campaigning by the family law reform organisation Resolution (as well as many others) to have fault removed from the process to obtain a divorce, the law is set to change following the third reading of the Divorce, Dissolution and Separation Bill in the House of Commons, on 17 June 2020.
At present someone bringing divorce proceedings is forced to make conduct allegations (adultery, unreasonable behaviour, or desertion) against the other spouse in order to be able to establish the irretrievable breakdown of the marriage (which is the only ground for divorce), unless he or she is prepared to wait for a minimum of two years to get a divorce. This “Blame game” serves no useful purpose and raises the emotional temperature, making it more difficult for divorcing couples to settle arrangements concerning their children and the financial aspects of the divorce. Under the new divorce law (which allows for joint applications for divorce) all that is required is the filing of a statement that the marriage has broken down irretrievably. There is no possibility of the other spouse contesting the divorce (although this is very rare in any event) and after a minimum period of 20 weeks, a conditional order of divorce will come into effect.
The need for legislative change to our divorce law was highlighted by the unhappy case of Mrs Tini Owens, the wife of a wealthy mushroom farmer, which went all the way to the Supreme Court. She filed a petition for divorce based on the fact of her husband’s alleged unreasonable behaviour. Although Mr and Mrs Owens were living in separate houses and their marriage had clearly broken down irretrievably, Mr Owens did not wish to be divorced and decided to contest the divorce. Because Mrs Owens was unable to satisfy the court that her husband had behaved in such a way that it was unreasonable to expect her to live with him, she found herself trapped in a loveless marriage and forced to wait until the couple had been separated for five years to get a divorce.
The Bill, which began in the House of Lords, has the support of both the Government and the Opposition but was opposed by a few reactionary Tory MPs who attempted unsuccessfully to derail the Bill in the House Of Commons with the usual stale arguments that changing the law will lead to an increase in the number of divorces and undermine the institution of marriage, ignoring the obvious fact that our present divorce law does not prevent marriages breaking down. The Bill will now return to the House of Lords to consider an amendment, before receiving the Royal assent.
Equivalent changes in the procedure for dissolution of civil partnerships (now available to mixed-sex, as well as same-sex couples) are also being introduced.
The change in the law is long overdue and it is a pity that it is not going to be brought into force until the autumn of 2021. Maeve O’Higgins family law partner Burlingtons Legal LLP June 2020