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 As the Divorce, Dissolution and Separation Bill 2019-2021 receives its second reading debate in the House of Commons, has the time come for no-fault divorce?

 

Sophie Kay, a  member of our highly successful family team, comments:


Today, the Divorce, Dissolution and Separation Bill 2019-2021 will receive its second reading debate in the House of Commons. The Bill completed its House of Lords stages on 24 March 2020 and was presented to the House of Commons on Wednesday 25 March 2020.

 

If enacted, the Bill will enable married couples to divorce without having to attribute blame to their spouse or wait the minimum two years in a state of limbo as separated spouses. This is a landmark and welcomed Bill. Provided it becomes a piece of legislation, it will be the biggest shift in marriage law in this jurisdiction in over 50 years.

 

Under the Matrimonial Causes Act 1973, in order to divorce, couples must establish one of the 5 “facts” to support that the marriage has irretrievably broken down:

 

  • Adultery

  • Unreasonable behaviour

  • Desertion

  • The couple has lived apart for more than two years and both agree to the divorce (divorce by consent)

  • The couple has lived apart for at least five years, even if one partner disagrees (divorce without consent)

 

Problems arise when a spouse disputes these facts and resists the divorce. If they successfully defend themselves under one of the ‘blame’ grounds (adultery, unreasonable behaviour or desertion), then the other spouse is trapped in the marriage for 5 years from separation. Many couples do not have the funds or time for their lives to be paused for such a long duration. This is plainly unsatisfactory and unjust. The Supreme Court’s rejection of Tini Owens’ appeal, where her husband refused to agree to the divorce, is an infamous example.

 

At first-instance in Owens v Owens, it was found that the marriage had broken down, but that Mrs Owens’ 27 examples of unreasonable behaviour were flimsy and exaggerated, and the exampled relied on at the hearing were isolated incidents. For instance, she alleged that Mr Owens had been moody and argumentative and had disparaged her in front of others. Ultimately, this decision was upheld by the Court of Appeal and the Supreme Court, with Lady Hale saying that she, “found this a very troubling case. It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us”. What is troubling is that Mrs Owens had to go to such lengths of citing 27 examples in an attempt to divorce her husband, whom she married in 1978, but to no avail. What is even more troubling is that these 27 examples did not pass the threshold. What entitles the state to intervene in the personal lives of parties such that they can divorce only when ‘good enough’ reasons are provided or where they are forced to wait years?

 

Once the decision has been made to end a marriage, time is of the essence. It is imperative that a spouse is able to plan for their future, financially and emotionally, and move on with their life. The current law does not facilitate this, unless adultery, unreasonable behaviour or desertion is alleged. Upon either of these facts being alleged, the first roll of the blame-game dice takes place. At this point, things are said or alleged which cannot be taken back, and tensions rise. As such, the discussions surrounding the division of matrimonial assets and the arrangements for children take place against a backdrop of animosity and are often derailed. Automatically, co-operation is reduced whilst confusion and conflict increase. This is not in the children’s best interests, and further facilitates the use of children as pawns, not to mention the negative impact on spousal mental health.

 

Further, the current law results in divorce petitions painting often inaccurate descriptions of why and how a marriage broke down. What constitutes ‘unreasonable’ behaviour is not clear to many litigants, especially unrepresented litigants. Not only is this contrary to the rule of law (since it is not intelligible, clear and predictable), but it risks the inflation of allegations, or simply the use of more extreme examples of ‘unreasonable’ behaviour in order to cross the threshold.

 

It is noted that this Bill is not the first legislative attempt to introduce ‘no-fault’ divorce. Over twenty years ago, marriage law was very nearly reformed by Part II of the Family Law Act 1996, which had allowed for no-fault divorce, provided couples had taken part in compulsory information meetings. However, this was never implemented and was quickly repealed. In 2013, Lord McNally said the decision to repeal was based on the results of pilot schemes of the information meetings. He said that the meetings were unworkable, inflexible and provided generic information, which was not tailored to the parties’ individual circumstances and needs. It was also found that frequently only the petitioner attended the meeting.

 

It is sincerely hoped that this Bill will effect lasting change and bring marriage law into the 21st century. Canada established no-fault divorce in 1968, with Sweden following in 1973 (the same year as the enactment of the Matrimonial Causes Act), and Australia in 1975.

 

Family lawyers provide a service to navigate through and reduce conflict for their clients. Unfortunately, the current legal framework in England and Wales is incompatible with this. The time has come for ‘no-fault’ divorce to become the law, and stay the law.

To instruct Sophie in a divorce matter, please contact her clerk Jay Dorton: jaydorton@5pumpcourt.com

 

 

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