However, it is not the case that every in marriage breakdown there is someone at fault. In some cases, the marriage breaks down through no fault of the parties. It has been suggested for many years that in situations like this, there should be an option for a “no fault divorce”, rather than having to apportion blame or wait for a minimum period of two years post separation.
Austin Kemp examines the current law, the leading case which lead to reform and the bill currently making its way through Parliament which is set to provide the biggest shake up of the law in relation to divorce in decades.
Currently there is only one ground for divorce in England and Wales, that is that the marriage has irretrievably broken down. This must be evidenced by using one of five facts, listed below:
2. Unreasonable behaviour;
3. 2 years separation with the consent of both parties;
4. 5 years separation without consent;
It is therefore the case that if there is no one to blame for the breakdown of the marriage, the parties are required to have been separated for a minimum of 2 years in order to bring their marriage to an end.
If they do not wish to wait for this period, the only option available to them is for someone to “take the blame”. This involves one party petitioning for divorce on the basis of the other party’s unreasonable behaviour – the Petitioner must show the Court that the Respondent’s behaviour is such that he/she cannot be reasonably expected to live with them. Both parties should be advised by their respective solicitors that the allegations should be kept as mild as possible while still achieving the desired outcome and that allegations made will not usually have any bearing on any financial settlement. Despite this, it is very often the case that the party who is the Respondent feels aggrieved by the fact that they are “to blame” for the divorce.
The 2018 Supreme Court case of Owens v Owens highlighted an important issue in relation to the current divorce legislation. In this case, Mrs Owens had petitioned for divorce based on Mr Owens’ unreasonable behaviour. However, Mr Owens defended the petition on the basis that the examples of behaviour in the petition were not sufficient to satisfy the legal test – that Mrs Owens could no longer be reasonably expected to live with him.
While the Court accepted that the marriage had broken down irretrievably, ultimately it was found that Mrs Owens had not satisfied the legal test and therefore her petition was dismissed.
Mrs Owens appealed this decision to the Court of Appeal and eventually to the Supreme Court. On both occasions her appeal was dismissed. Mrs Owens was therefore denied a divorce and will have to wait until she has been separated from her husband for 5 years in order to petition without his consent.
While the Supreme Court dismissed Mrs Owens’ appeal, concern was expressed as the judges felt uneasy about the outcome. However, it is not their job to create new law, only to interpret the statute passed by Parliament. They therefore invited Parliament to consider making amendments to the current legislation.
Following the Court’s decision, the government ran a consultation entitled “Reducing family conflict: Reform of the Legal Requirements of Divorce”. Over 3,000 responses were received to the consultation with two major organisations working in family law, Relate and CAFCASS, supporting the move to a no fault divorce system due to its potential to positively impact separating couples and their families.
The government responded positively to the consultation stating that, “where these legal safeguards are met, we propose that a statement to the court from one party to a marriage that the marriage has irretrievably broken down should be sufficient on its own to satisfy the legal threshold for obtaining a divorce”.
Mirroring the government’s response to the consultation, the Divorce, Dissolution and Separation Bill was introduced to Parliament in order to change the current law relating to divorce by introducing a “no fault divorce”. While the Bill survived the attempted Prorogation of Parliament by the Conservative administration due to the Supreme Court’s decision that it was unlawful, it was lost during the Dissolution of Parliament for the 2019 General Election. However, on 7th January 2020 the Ministry of Justice announced that the Divorce, Dissolution and Separation Bill will once again be considered by Parliament.
The primary aim of the bill is to introduce the following framework to amend the current legislation in relation to divorce. However some elements of the current legislation will be retained:
1. The irretrievable breakdown of the marriage will remain as the only ground for divorce in England and Wales, however it is proposed that this could be demonstrated by a statement from one party confirming the marriage has broken down irretrievably. This would remove the requirement to prove one of the five facts currently in force;
2. There will be provision introduced for parties to make an joint application for divorce;
3. It will no longer be possible to contest an application for divorce other than on the basis of jurisdiction, validity of the marriage, fraud, coercion or procedural compliance;
4. A minimum time frame for proceedings will be introduced. The time frame will be as follows – 20 weeks from petition to Decree Nisi and 6 weeks from Decree Nisi to Decree Absolute;
5. The two stage process of Decree Nisi and Decree Absolute will remain;
6. Parties will still be unable to divorce in the first year of marriage;
7. The language used throughout the process will be modernised.
It is hoped that there will be significant cross-party support for this bill and, although Brexit is very much the focus of the Government at this time, the bill has not been lost.
It should also be noted that the reforms contained within the bill are intended to be replicated in relation to dissolution of civil partnerships and judicial separation proceedings.
The change in legislation is likely to impact divorcing couples in a positive way. It will reduce the animosity which can easily build when someone is forced to take the blame by allowing couples to work together to amicably end their marriage.
This in turn should mean that the costs in divorce cases will be reduced – animosity and lack of agreement is one of the main reasons for increased legal costs. By removing the requirement of blame, parties should be able to divorce without increasing each other’s costs.
Finally, removing the potential arguments from the divorce process means that couples can focus on resolving ancillary matters such as their financial settlement and child arrangements. The importance of these matters can sometimes get lost during arguments around the divorce. Further, it is likely that parties will be able to achieve more amicable agreements in relation to these ancillary matters due to the fact that they have not built a wall of resentment towards the other party from allegations made in the divorce petition.
At Austin Kemp, we are fully supportive of these reforms to divorce legislation. We hope that by removing the requirement of blame, more couples can have an amicable divorce and focus on resolving their finances and child arrangements to enable both parties to move on with their lives as quickly as possible and with minimal upheaval to their families.