No fault divorce consultation, a step in the right direction?

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In a day and age when it is no longer considered sinful to become divorced, the process of divorcing is a lengthy one that can be dragged out over many years. Getting a divorce can cause stress and anxiety not only to the parties directly involved but the families and children surrounding the relationship.

When a marriage breaks down to a point where it is irretrievable, either party can file a petition for divorce. When filing for divorce it must be based on one of five reasons. These reasons include adultery, unreasonable behaviour, and desertion. The other two reason are based on time separated – If both parties are in agreement to the divorce and have been separated for more than two years and if you have been separated for more than five years and one side of the party does not agree to the divorce.

It has been known that one party may agree to adultery or unreasonable behaviour just to get a quick divorce. However in a recent case challenged in the Supreme Court it was highlighted just how out of date the current Matrimonial Causes Act is.

The case surround that of Mrs Tini Owens and her husband who when their marriage broke down filed for divorce, based on s.1 (2)(b) Matrimonial Causes Act 1973, unreasonable behaviour on the side of her husband. When Mr Owens failed to accept the reason that his wife had based the divorce on, Mrs Owens started court proceedings. Mrs Owens tried to persuade the judge that Mr Owen had acted in such an unreasonable way she was no longer able to live with him. However, the judge dismissed Mrs Owens case describing her reasons as ‘flimsy’.

The case was taken to the Supreme Court where it was heard in front a panel. Lady Hale during the closing statement advised that “I have found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that parliament has given to us”[1]

The case was just of a long discussion which set the wheels in motion for a consultation for a change in the law surrounding fault based divorce. The consultation must be carefully considered as the law should not be changed so much as that divorce is no longer given a second thought as something which can be done in the heat of the moment.

The consultation has looked at the implications should it remove the requirement to prove one of the facts of divorce and its outcome showed that of positivity. Mainly situations surrounding domestic abuse situations where it is the norm for fear of repercussion a divorce is not filed for. The consultation showed it will be much easier for people to escape their abuser without the fear of showcasing the abuse.

The other point that the consultation looked at is the implications to families and children should the current law stay as it is. If the requirement to prove one of the five facts is removed it will mean less conflict between the parties meaning a less stressful home environment, something that the government and ministers are keen to implement. Before the consultation it was obvious to health officials that the difficulties surrounding divorce impacted on the children more than it ever should.

The consultation was finally brought to an end on the 10th December and it is now a waiting game to see if, when and how the new law will be implemented.

The consultation and its results have been greatly backed by the Law society. Their response to the consultation can be found here – https://www.lawsociety.org.uk/policy-campaigns/consultation-responses/reforming-the-legal-requirements-for-divorce/


[1] https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf at Paragraph 47.

Written by Victoria-Jayne Scholes LLB (Hons)

1 Comment
  1. Scitobor 7 days ago

    Although I am an OU student, the degree I am studying is not law, but computing. However, I am a former practising solicitor.
    The Family Law Act 1996 was enacted whilst I was in practice. Part 2 of the Act introduced the ‘no fault’ divorce framework. We practitioners were looking forward to the implementation of the Act, but it never came. Why?
    I do not know all of the answer but the consultation document summarizes the arguments against no fault as “….that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown”
    However, these arguments are not new and had been made whilst the 1996 Act was making its way through Parliament. In the end, the willingness to make changes boils down to the value systems of the people in crucial positions of power.
    I haven’t seen any evidence that difficult divorce law deters people from ending a marriage but if there was, so what? Talk to any Family Lawyer and most of them will tell you that fault-bases divorce law is archaic and works against efforts to bring about a marriage settlement which enables the parties to move on.
    This is one area of law that has failed, for too long, to meet society where it is. Lets hope this failure is be brought to an end soon.

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