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For years there has been a fundamental contention within the family law system in England and Wales; specifically that divorcing couples have been encouraged to come to a financial settlement and make arrangements for children between themselves even after one party has placed blame on the other for the relationship breakdown.
Under English law, to start proceedings immediately, one spouse must accuse the other of:
Around 60% of divorcing couples state their relationship has irretrievably broken down due to the two reasons listed above.
If spouses want to divorce without blaming each other, they must wait at least two years. Even then, divorce proceedings can only begin if both parties agree, otherwise the person wanting to exit the marriage must either wait five years or otherwise petition on the grounds of unreasonable behaviour or adultery.
In April 2019, the government finally confirmed that fault-based divorce will end in England and Wales. The date for the reform had not been announced at the time of writing.
This development has been met with relief from family law Solicitors, Barristers, the Law Commission, Resolution, and most senior members of the Judiciary. In this article, we explain why and what no-fault divorce will mean for you.
No-fault divorce means a couple wishing to end their marriage would only have to state that the marriage had irretrievably broken down. The ‘five facts’ proving this would be removed. Those facts are:
There will be a minimum timeframe of six months from the petition of divorce to the granting of the decree absolute. This will allow for any ‘changes of heart’ which may result in the couple deciding to try and mend their relationship.
The case of Owens v Owens was widely reported in the media and highlighted the unfairness and archaic nature of England’s current divorce laws.
Tini Owens had been married to her husband for 37 years and they enjoyed a moderately wealthy lifestyle thanks to a business they had built up together. Mrs Owens was unhappy in the marriage and wanted a divorce, citing unreasonable behaviour. However, Mr Owens took the unusual step of defending the divorce (something the reforms will prohibit). His actions highlighted just how difficult it can be to divorce a spouse who is determined to stay married.
In the High Court, Judge Robin Tolson QC, stated that Mr Owen’s behaviour could not be called “unreasonable”, instead he was simply “old school”.
The judge went on to describe Mrs Owen’s allegations of unreasonable behaviour against her husband as "exaggerated" and "at best flimsy", claiming they were "minor altercations of a kind to be expected in a marriage" and "an exercise in scraping the barrel". He also ruled that Mrs Owens was "more sensitive than most wives" and that she had "exaggerated the context and seriousness of the allegations to a significant degree".
This decision was met with shock, and most commentators believed it would be overturned on appeal. After all, surely a woman could not be forced to remain in a marriage in England in the 2010s?
It turned out she could. Both the Court of Appeal and the Supreme Court upheld Judge Robin Tolson QC’s decision. Not because the judges believed that people should be forced to remain married. Lady Hale, the President of the Supreme Court, called it "a very troubling case". Lord Wilson and Lord Mance shared "uneasy feelings". But their hands were tied by legislation. If charges of unreasonable behaviour were defended, courts were obliged to apply an objective test as set out in section 1(3) of the Matrimonial Causes Act 1973 to the subjective elements of the marriage. A decision must then be made as to whether the Petitioner could reasonably be expected to live with a Respondent. In the case of Mrs Owens, it was held she could.
Under the new reforms, couples wishing to divorce will only need to provide a statement saying their marriage has irretrievably broken down. It will also be possible for a couple to make a joint application for divorce. The ability to petition individually will be maintained. The two-stage legal process currently referred to as decree nisi and decree absolute will continue.
It cannot be overemphasised how much pressure and cause for resentment will be eradicated by these divorce reforms. No longer will one spouse have to accept a list of examples detailing their alleged unfaithfulness or behaviour which are deemed impossible to live with.
The Law Society states:
“We support this reform to remove blame and simplify the process.
No-fault divorce would reduce conflict, allowing couples to focus on important issues like children, property and finances.
We believe the government should review the divorce process as a whole and make sure that it is easier for people to understand and navigate.”
Solicitors are welcoming the reforms to divorce law. No-fault divorce is likely to reduce the risk of divorcing couples going to Court, which is expensive and stressful. Solicitors will be able to support couples in working out financial settlements and arrangements for children in a less confrontational, resentful environment, resulting in more peaceful and non-contentious agreements being reached.