Why the introduction of “no fault divorce” makes sense in 2020

Marriages, like many relationships, unfortunately break down. This is a sad, yet indisputable fact of life in a society where 42% of marriages end in divorce. And yet, there is often very little to be gained from conducting a forensic post-mortem of why the marriage broke down, or pointing the finger at the other for the failure of the relationship.

Energies (and not to mention legal costs) are therefore much better spent in looking forward, rather than back; and trying to resolve issues surrounding distribution of assets and care of the children, rather than squabbling over why the relationship broke down in the first place.

Whilst the reasons for divorce are complex and myriad; they can also be incredibly simple. Sometimes a relationship has simply “run its course”; the parties are different people from whom they were at the start, they want different things and over the years their differences become magnified until they feel they have no choice to separate. And yet, there is very little to reflect this in our current divorce procedure.

Why is this? Well, it’s likely because the divorce procedure has not been substantially reformed since 1973. And whilst the ’70s might not sound so long ago to many readers, a lot has changed in our societal attitudes towards divorce and the “nuclear family” in the last 50 years.

What is the current divorce procedure?

Under the current law, the parties are required to prove that there has been an “irretrievable breakdown” of the marriage. Contrary to popular public myths, this is the sole ground for divorce under UK law.

That sounds pretty good at first glance, right? Well the contentious part is that this ground for divorce must be proven with reference to the “five facts”, three being based on “fault” and two being based on periods of separation. Divorcing couples can therefore only be granted a divorce if they can prove that there was an irretrievable breakdown of the marriage due to one of the following reasons:

• That the respondent committed adultery, and the petitioner finds it intolerable to live with the respondent.  (NB that if the parties live together for more than 6 months after the adultery takes place then they will not be able to rely on this fact).
• That the respondent has behaved in such a way that petitioner cannot be reasonably be expected to live with the respondent (often colloquially referred to as “Unreasonable behaviour”)
• That the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition (“Desertion”)
• That the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition…and the respondent consents to a decree being granted (“2 years separation with consent”)
• That the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition (“5 years separation”)

Sounds pretty legalistic and archaic – but what does that mean in practice? Well it means that the parties have to play a game of “pin the blame on their ex”, if they want to wait less than 2 years (if the other party consents) or a staggering 5 years (if the other party does not consent) before they can petition for divorce.

In practice, this also means that separating couples (and/ or their lawyers) have to start engaging in a “mud-slinging” exercise to satisfy the court that they should be granted a divorce. The most commonly relied upon fact for divorcing couples is “unreasonable behaviour”. However, as Rt Hon Elizabeth Butler-Sloss (Former President of the Family division) pointed out, obtaining a divorce on unreasonable behaviour is often a “hypocritical charade”, whereby the spouse who wants out has to claim that they had no part in the failing of the marriage.

A good lawyer will tell you that drafting the petition can be like traversing a tightrope; you need to allege enough nasty stuff about your ex-spouse to satisfy the Court that your marriage has broken down, but you do not want to go so far that you risk inflaming your ex, causing already emotive proceedings to become acrimonious, or encouraging your ex to defend the divorce (which is often a pointless exercise).

The law is clearly ripe for reform, and there is no better case in point for the inadequacies of the current divorce law than that of Tini Owens. For those not in the know, Tini owns was a woman (then 68) who lost her high-profile appeal to the Supreme Court to be granted a divorce in July 2018. She had petitioned on the grounds of unreasonable behaviour in 2015, as her husband refused to consent to the divorce and there were no other grounds available to her. However, she was held not to have satisfied the test for unreasonable behaviour in her petition, the result being that she would have to stay in an unhappy marriage until either 2020 (when she would be eligible for divorce on the basis of 5 years’ separation) or the law was reformed.

Following the ruling in Ms Owens’ case the MOJ stated that ” The current system of divorce creates unnecessary antagonism in an already difficult situation” and that they were “are already looking closely at possible reforms to the system.”

Well in a twist of somewhat cruel irony, (that I’m sure won’t be lost on Ms Owens) in the year she becomes eligible for divorce, it looks as though the divorce laws are finally set to be reformed.

A glimmer of hope

Yesterday, (8 June 2020), the Divorce, Dissolution and Separation Bill received its second reading in the House of Commons. The Bill, which (if passed) will represent a landmark change to the law, was backed by MPs by a landslide with 231 votes to 16 against.

The legislation aims to end the “blame game” and reduce acrimony between divorcing couples by replacing the five facts mentioned above with a simple statement made by the parties that the marriage has broken down. Judges will also have to take that statement as prima facie evidence that the marriage has in fact broken down. This means taking divorcing parties at their word rather than trying to look behind the reasons for their divorce and to pick at healing wounds.  The ability to contest a divorce (which is used in fewer than 2 % of cases) will also be scrapped and parallel changes will be made to the laws governing dissolution of a civil partnership under the Bill.

Some conservative MPs have rebelled against the Bill, as they are concerned that this will increase lead to a spike in divorce rates (particularly during the coronavirus pandemic, where many have been forced into spending more time than they usually would with their “nearest and dearest”) .

However, rather than undermining the “sanctity of marriage”, or encouraging divorce, this reform simply seeks to destigmatise and take the sting out of the divorce process for couples whose relationship has genuinely broken down; as you don’t need a divorce lawyer to tell you that a divorce is stressful!

As someone who has advocated for no-fault divorce since she first began reading Family Law at University, and has personally watched clients and friends alike experience the unnecessary anguish that comes from divorcing parties feeling like they are being vilified by their exes’ petition, I warmly welcome this proposed change to the law.