6.5 Government proposals
The Ministry of Justice has published its much-anticipated consultation paper on reform of the grounds for divorce in England and Wales under s.1(2) of the Matrimonial Causes Act 1973 (Consultation document) .
This comes after ever growing pressure from campaigners, newspapers and senior judges to change the “unjust” and “outdated” laws that dictate when a couple can and can’t get divorced.
There are lots of changes that could be made to improve divorce law, but the one most archaic element which causes conflict, division and trauma is the need for blame.
The breakdown of a marriage is a difficult time for families. The decision to divorce is often a very painful one. Where children are involved, the effects where there is ongoing conflict, can be profound (Reform of legal requirements for divorce) .
Under current law in England and Wales, couples must either live apart for a substantial period of time before they may divorce, or else they must make allegations about their spouse’s conduct. This is sometimes perceived as showing that the other spouse is “at fault”.
Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children. There have been wide calls to reform the law to address these concerns, often framed as removing the concept of “fault”.
The government therefore proposes to reform the legal requirements for divorce so that it is consistent with the approach taken in other areas of family law, and to shift the focus from blame and recrimination to support adults better to focus on planning for their own futures and for their children’s. The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course to make sure that divorcing couples are not put through legal requirements which do not serve their or society’s interests and which can lead to conflict and accordingly poor outcomes for children
This consultation proposes adjusting what the law requires to bring a legal end to a marriage that has broken down irretrievably. This adjustment includes removing the ability to allege “fault”. This is similar to the process proposed in the Divorce Law Review Bill currently sponsored in the House of Lords by Elizabeth Butler-Sloss, former president of the Family Division.
7 Models of divorce in other Jurisdictions
Scotland: Like England and Wales, Scotland has a mixed system, under which the ground of irretrievable breakdown must be proved by facts, some fault and some no-fault and some was similar to the Matrimonial Causes Act 1973 until the Family Law (Scotland) Act 2006 amended the Divorce (Scotland) Act 1976. The facts are now adultery, behaviour, separation for one year where both parties consent, and separation for two years where they do not.
Republic of Ireland: Under the Family Law (Divorce) Act 1996 divorce is based on no-fault grounds, namely living apart for four years out of the last five, and no prospect of reconciliation.
Spain: Divorce in Spain is straight forward; a three-month bar after the marriage
Delaware (USA) is a mixture of fault and “no-fault” divorce state. In a no-fault divorce, neither spouse needs to prove that the other spouse is the reason for the divorce. Instead, parties may simply cite “irreconcilable differences” or an “irretrievable breakdown of the marriage” in order to establish grounds for divorce and have lived apart for six 6) months. Fault-based divorces, on the other hand, require more specific reasoning, such as: adultery, abandonment, abuse, or insanity mental. In addition, the parties must have been separated, not sleeping together or having sexual relations for the 30-day period preceding the first court date for the divorce petition (Based on Delaware Code – Title 13 – Chapters: 1505) .
6 Divorce practitioners
Many family law experts and very senior judges believe divorce without blame is better way of achieving a resolution and avoiding a court imposed one. Any divorce process is often an emotional rollercoaster for those involved but in a lot of cases, couples are looking to avoid confrontation and dispute. Resolving problems outside the courts, reducing conflict and the burden on the family courts are just some of the reasons why the campaign for ‘no fault’ divorce is gaining a lot of support. Many solicitors indicate the reason for the marriage break-up is genuine and, rather than assigning blame, allow focus on important issues such as division of assets and future care of the children.
Some people find the current system archaic and unrepresentative of 21st century values. This issue is likely to be under the spotlight for some time to come. Here at Harrogate Family Law we are keen to see any changes that make it easier for families to maintain good communication and positive relationships after divorce and ending the blame culture that exists under the current system can only help us towards that goal.
6 “Family Matters” campaign in The Times
On 17 November 2017, the Times newspaper launched a campaign to reform the divorce law in England and Wales. It is not clear what precipitated this campaign, but it may well be a result of a perfect storm of high profile matrimonial finance cases in the press, a private member’s bill being read in Parliament, lobbying by The Marriage Foundation led by former High Court Judge Paul Coleridge, and the campaign already underway by Resolution (supported by the FLBA) for ‘no fault’ divorce, brought into sharp focus by the case of Owens v Owens, which is due to be heard in the Supreme Court in May 2018 (and in which five members of 1KBW are involved).
Will the Times be successful in bringing about a change to laws which are now 44 years old, and despite various calls for reform from professional bodies over the years? Maybe not, especially with a Government so preoccupied by Brexit and without a majority in the House of Commons.
In any event, the reforms sought by The Times are a slightly mixed bag. Some of the reforms called for are not controversial. For example, there is an overwhelming majority of specialist family practitioners (solicitors and barristers) who believe that ‘no fault’ divorce would be ‘a good thing’. The current law only permits a so-called ‘quickie divorce’ (although that is a myth) if there has been adultery or if the Petitioner pleads that it is not reasonable to expect her/him to live with the other spouse anymore because the marriage has irretrievably broken down due to the ‘unreasonable behaviour’ of the other party. The only other options are to be separated for 2 years (with the consent of the other party to a divorce) or for 5 years (if the other party does not consent).
Before ‘behaviour’ petitions were permitted, parties in the early to mid-20th Century who wanted a speedy divorce would concoct a fiction. They would stage a phoney adultery, often in hotels or B;Bs, with the other spouse fully aware and approving of the ‘adultery’ that was taking place.
Latterly, coupes who both want a speedy divorce to have been forced to concoct similar fictions, with the Petitioner pleading the alleged poor behaviour of the other party, even if in fact there was no poor behaviour and the reason for the breakdown of the marriage was simply that the parties did not love each other anymore. As the law currently stands, not loving each other anymore is not a good enough reason to obtain a divorce. Instead spouses concoct behaviour petitions that are as anodyne as possible, in the hope that the court will simply rubber stamp it anyway and the other spouse will not be too offended.
This forces parties into an absurd situation: they must concoct often largely fictitious allegations about the behaviour of their spouse, and the other spouse is forced to accept the allegations – the only alternative being to defend the divorce, pointlessly and at huge cost, especially if they too also want a quick divorce.