No fault divorce plans on the way

The Government plans to introduce new law, which it hopes will update the current divorce law and assist in reducing family conflict following a divorce. Widespread support was shown for the proposals for a ‘no-fault’ divorce, following the case of Owens v Owens.

Tina Owens, 68, wanted to divorce her husband of 40 years on the grounds that she was unhappy, but he refused to agree to a divorce and the Supreme Court unanimously rejected her appeal. This means the couple must remain married until 2020.

The current divorce system is often referred to as being ‘fault-based’ as, unless you have been separated for two-years with consent, or five-years without, it forces spouses to evidence unreasonable behaviour or adultery, even if the couple have made a mutual decision to part ways. This will often result in increased conflict between the parties making it harder for them to resolve financial issues and also arrangements relating to children. This culture of fault, blame and having to prove two- or five-years separation is now recognised as not helping couples to move on with their lives.

There are currently over 100,000 divorces in England and Wales each year and ‘behaviour’ is the most common factor used for both opposite-sex and same-sex divorce according to family law specialist organisation Resolution.

Resolution found that around 90% of its members believe the current law makes it harder to reduce conflict between separating couples. Most professionals supporting the reforms feel the introduction of a ‘no-fault’ divorce would help separating couples reach an agreement outside of court.

In addition, whilst very few divorces are actually contested, this practice can be misused by abusers choosing to contest a divorce purely to continue their coercive and controlling behaviour over the other spouse. The government therefore proposes to remove this option, which, it is hoped, will remove some of the acrimony associated with the divorce process.

Some of the proposed changes to the law include:

• Replacing the requirement to provide evidence of behaviour or separation with a requirement to simply provide a statement of irretrievable breakdown;
• Creating the option of a joint application for divorce, alongside the current option for one party to initiate the process;
• Removing the ability to contest a divorce; and
• Introducing a minimum timeframe of six months, from petition stage to conclusion of the divorce, which the government says will provide a meaningful period of reflection and the opportunity to turn back if this is considered appropriate. It is also believed that where divorce is inevitable, this change will better enable couples to reach agreement on practical arrangements for the future, such as child and financial arrangements.

These reforms appear to retain what is considered to work well in existing divorce law and remove barriers to resolving difficulties more amicably when a marriage has irretrievably broken down. The new legislation is expected to be introduced as soon as parliamentary time allows.

For any queries relating to family matters, please do not hesitate to contact your local branch of Humphries Kirk.