Whose fault is it anyway? An update on no-fault divorce
If you consult a family lawyer in relation to a potential divorce, they will explain that the only ground for divorce is that the marriage has irretrievably broken down.
This ground has to be proved, initially in the divorce petition (the document which is used to initiate the divorce), by one of five facts (three of which are fault based):
1. Adultery – the other party (‘the respondent’) has committed adultery and the person seeking the divorce (‘the petitioner’) finds it intolerable to live with him/her (note – under the present law, adultery can only be committed with a member of the opposite sex and you cannot bring a petition based on your own adultery). This fact is not available to same sex couples.
2. Behaviour – the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her (this requires the petitioner to list examples of the ‘bad behaviour’ of their spouse – for example, they are controlling, they are rude and shout at petitioner, they are unsupportive and so on).
3. Desertion – the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition (this is extremely rare).
4. Two years’ separation with consent – the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree of divorce being granted.
5. Five years’ separation without consent – the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Therefore, if you want a consensual divorce without seeking to apportion any blame as to the cause of the breakdown of the marriage, you will be required to wait for a minimum of two years (or five years if your spouse will not agree). In fact, ONS figures show that in 2017, 58% of divorces were fault-based. This is probably due to the fact that, once you have decided the marriage is over, you want to be able to move on with your life as soon as possible; in most cases it has taken the petitioner considerable thought and strength to come to the conclusion that they need to take this step. Another issue is that, without a divorce up and running, the separating couple cannot ask the Court to deal with resolving the financial aspect of their separation and the financially weaker party cannot bring any claims for financial remedies. This is a significant issue as parties need clarity in relation to their financial position going forwards.
Owens v Owens
The issue of no-fault divorce was pushed into public consciousness in large part due to the case of Tini Owens. In 2016, a judge sitting in the main London Family Court refused to grant Mrs Owens (the petitioner) a divorce, even though he found that the marriage had broken down. The husband had defended the divorce, which is a rare occurrence. The judge found that Mrs Owens had failed to prove, within the meaning of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him. Being desperate to exit the marriage as soon as possible, Mrs Owens appealed. Both the Court of Appeal in 2017, and the Supreme Court in 2018, dismissed her appeal. Judges in both courts said that it was for Parliament and not judges to change the law. In the Court of Appeal, Sir James Munby, then President of the Family Division, spoke of an aspect of the law and procedures being based on “hypocrisy and lack of intellectual honesty”.
Recent Developments – where are we now?
Following the case of Owens v Owens, pressure mounted on the government to address what many consider to be a substantial problem with the present state of the law. Resolution (an organisation of 6,500 family lawyers and professionals) conducted a survey in 2018 which found that 67% of family law practitioners said the current law makes it harder for separated parents to reach an amicable agreement over arrangements for children and 80% believe the introduction of no-fault divorce would make it more likely for separated couples to reach an agreement out of court.
In July 2018, a Private Member’s Bill was introduced to the House of Lords which would require the Lord Chancellor to review the law relating to divorce and judicial separation and to the dissolution of civil partnerships and the separation of civil partners. On 15 September 2018, the Ministry of Justice published a consultation paper considering the legal requirements for divorce and asking for views on replacing the current requirement to establish one or more of the five facts to show that a marriage has broken down irretrievably, with a process based on notification. This would potentially remove both the ability to allege fault and the ability to contest (defend) a divorce. The consultation closed on 10 December 2018.
Following strong responses to the consultation, in early February 2019, the justice secretary, David Gauke, committed the government to reforming divorce law through legislation in the next Parliamentary session, which starts in May 2019.
While there is clear, widespread support for a change in the law, there are those who say that the introduction of no-fault divorce will erode the institution of marriage as there is a risk of the divorce rate increasing if it is perceived to be easier to get a divorce. They also link this to the negative impact of family breakdown. Some people also suggest that they should be entitled to set out the reasons why they believe the marriage has broken down and that, for them, it is an important part of the process.