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26 April 2019

Long overdue divorce law reform - why it won’t lead to speedy, McDivorces

4 mins

Under current legal regime, the divorce itself can be a highly acrimonious and hostility-inducing process. In addition to establishing that their marriage has irretrievably broken down, divorcing couples must prove that one of five facts is satisfied, of which three are fault-based and two require the parties to wait for years before they can start the divorce process. The five facts are:

  1. Adultery
  2. Behaviour of one party making it unreasonable to expect the other to live with them
  3. Desertion
  4. Two-year separation with both spouses agreeing to a divorce or five-year separation where consent is not required.

Current law related to divorce, dating back to the 1970’s, is archaic. England is one of very few remaining European jurisdictions in which separating spouses are required to assign blame in order to obtain a divorce, and cannot choose to amicably split up by common accord. Under section 1(2) of Matrimonial Causes Act 1973, in addition to irretrievable breakdown of marriage, one of five facts listed above needs to be established. 

Adultery, unreasonable behaviour and desertion, all require one party, the petitioner, to prove they were wronged by the other party, the respondent. Two years’ separation requires the consent of the other party, which can be refused for any reason, and five-years’ separation does not consent or allegations, but the lengthy time bar can result in a financially-dependent spouse being left with no support for half a decade.

Even if someone is desperately unhappy in a marriage, they may not be able to prove that there has been unreasonable behaviour. For example, marriage being loveless as the result of the husband being cold, rude and distant was not sufficient in the recent high profile case of Owens v Owens.

In the Owens case, which reached the Supreme Court, the petitioner wife argued her husband’s far-from-loving attitude made it unreasonable to expect her to continue living with him. The husband decided to challenge her petition, and the couple engaged in lengthy court process. The Supreme Court agreed with the husband and ruled that the wife must wait until 2020 (that is five years after they separated) to obtain a divorce, because the ‘unreasonable behaviour’ ground was not available to her. Lord Wilson admitted the court reached this conclusion ‘with reluctance’. Lady Hale also expressed her disappointment with current legal framework, but said the law was clear and it’s not the court’s role to change it; she called for reform of the current divorce regime.

David Gauke, the Justice Secretary, announced on Tuesday, 9 April, that the Government is planning to introduce no-fault divorce as soon as the parliamentary schedule allows. According to the Ministry of Justice, current fault-based grounds of divorce will be replaced by a simple statement of irretrievable breakdown of marriage. There will be an option for a joint petition for divorce (as opposed to the current, adversarial system in which one party must divorce the other). New legal provisions will not allow for one spouse to refuse divorce if the other wants it.

Immediately following this announcement, which was warmly welcomed by practitioners, some voices expressed their concerns that divorce will become too easy to obtain. Critics argue that it will be possible to get divorced very quickly and that the reform will undermine the institution of marriage and its sanctity.

The governments, foreseeing such concerns, underlined that it plans to introduce a six-month waiting period between the petition stage and pronouncement of divorce to allow for reflection and possibly going back on decision to split up.

Critics, however, are obviously unaware that divorce is already a lengthy process due to how incredibly slow the courts are. Often, at least twelve months pass from issuing a divorce petition to obtaining decree absolute (which ends the marriage). When one spouse is not willing to cooperate e.g. by not disclosing all financial assets, challenging the petition, or where children are involved, it can last much longer.

Whilst divorce is unlikely to become a speedy or easy process, the introduction of no-fault divorce will result in less hostility between separating spouses, which in turn will have a positive impact on post-divorce relations – especially when children are involved.

If you’re considering separation or divorce, contact our expert family lawyers here

This article was written by Adam Krynicki, Paralegal. 

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