Divorce legislation has mostly remained the same for nearly 50 years but this is now considered by many to be out of date and no longer fit for purpose.
Divorce legislation has mostly remained the same for nearly 50 years but this is now considered by many to be out of date and no longer fit for purpose. The concerns that have been raised surround the current divorce laws being seen to cause destructive breakups and increase conflict and distress so the time has finally come for the Government to review whether a change in the law is necessary.
Current Divorce Laws
The law of England and Wales recognises that divorce results in serious changes in a person’s rights and responsibilities and as a result, a divorce is only allowed when “the marriage has irretrievably broken down” and cannot be repaired.
The person seeking the divorce (the petitioner) must however satisfy the court that this is the case by proving that one of the following five factors apply:
- Their spouse (the respondent) committed adultery and the petitioner finds it intolerable to continue living with them;
- The respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- The respondent has deserted the petitioner for at least two years;
- The parties have lived apart for a continuous period of at least two years and the respondent consents to a divorce;
- The parties have lived apart for a continuous period of five years.
- The first two of the above facts are known as “fault-based” divorces given that they are based on the conduct of the Respondent. The remaining factors all carry a time requirement of two or five years separation.
As a result, in order to get a quick divorce, petitioners most often find themselves having to make allegations of unreasonable behaviour against their spouse, on 3 out of 5 divorces in fact according to the Office of National Statistics. This encourages parties to live in the past as opposed to focusing on the future for themselves and the children at what is already a very difficult, emotional and stressful time for them all. This often triggers high conflict and emotions which has a detrimental impact on both of the parties, their relationship, any negotiations they may be involved in and any children of the parties who are often exposed to such conflict.
Other requirements to the divorce process include having a minimum time period of 6 weeks and a day between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute). Though in practice, the process takes much longer.
After the recent case of Owens v Owens, which received high media exposure, strong calls were made for the current divorce laws to be reviewed to demine if they continue to serve the needs of a modern society.
Owens v Owens saw Mrs Owens apply for a divorce against her husband in 2016 who subsequently defended this on the basis that he did not agree that the marriage had irretrievably broken down. Mrs Owens sought to rely on 27 examples of why she felt her husband’s behaviour was such that she could not be expected to live with him to support her claim. However, these were not considered sufficient by the court, despite the Judge accepting that the marriage had broken down. Mrs Owens was therefore refused permission to proceed with the divorce and was required to remain married to her husband until a period of five years has lapsed since the parties’ separation.
Mrs Owens took her case to the Court of Appeal who were unable to grant her appeal on the basis that it was for Parliament and not Judges to change the law. This triggered action to finally be taken.
Divorce Law Review Bill
Family law in general seeks to avoid a confrontational approach and encourages disputes to be resolved in a constructive manner. As a result, a draft Bill has been prepared by the former President of the Family Division, Baroness Butler-Sloss, following a significant amount of research by family lawyers, politicians and legal and work relationship experts. The proposal sets to reform the legal requirements of the divorce process to ensure it is consistent with the approach taken in other areas of family law.
The key principle of the Government’s objective is to reduce family conflict and the 2 objectives to achieve this are:
- 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
Some of the proposals that have been made in support of this include the following:
- Retaining the sole ground for divorce: “the irretrievable breakdown of a marriage”;
- Removing the need to show evidence of the other spouse’s conduct, or a period of living apart thereby removing the ability to allege “fault” against each other;
- Introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce;
- Removing the opportunity for the other spouse to contest the divorce application, unless extenuating circumstances apply such as mental capacity;
- Whether the minimum timeframe for the process between the Decree Nisi and Decree Absolute should remain the same.
- Arguments of those who oppose the introduction of “no-fault divorce” include that the institution of marriage should be supported, the risk of the divorce rate increasing and the negative impact of family breakdown.
The Consultation Process
The proposals by the Government are currently only at the consultation stage and have not yet come into law. The consultation seeks views on the detail of how best to change the law to reduce family conflict and strengthen family responsibility and if you would like to give your views on the consultation you are able to do so until the 10th December 2018 using the following link: https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/
Further details of the reform from the Ministry of Justice can be found here: https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/