“No fault” divorce: end of the blame game?
What is the current law?
Under the Matrimonial Causes Act 1973 there is one ground for divorce and that is that the marriage has irretrievably broken down. This then needs to be evidenced by one of five facts:
i. One parties’ unreasonable behaviour, meaning that the party petitioning for divorce could not reasonably be expected to live with other party;
ii. One parties’ adultery;
iii. A period of two years’ separation, as agreed between the parties;
iv. Desertion of one party by the other for two years;
v. Five years' separation (if the other party does not agree to the divorce).
The current law means that a couple wishing to proceed with a divorce without blame are not able to do so by mutual consent unless they have been separated for a minimum of two years. In absence of this mutual consent they must wait five years. Understandably, many separating couples do not want to put their lives on hold for this amount of time, leaving couples with no choice but to petition for divorce on unreasonable behaviour or adultery.
The unfortunate reality is that the current law can escalate conflict between the parties. In turn, this often means that it is more difficult to agree arrangements for the children or the matrimonial finances.
How will the proposed changes make a difference?
It is proposed that the Matrimonial Causes Act 1973 is amended to allow parties to put together a joint petition as a result of the marriage breaking down irretrievably. There will also be a corresponding amendment in respect of dissolution to the Civil Partnership Act 2004.
When the Court receives a joint divorce petition from both parties, it shall grant a decree of divorce (known as the Decree Nisi) if it is satisfied that each individual has freely and independently signed a statement to confirm that the marriage has broken down irretrievably. In addition, there will be a minimum timeframe of six months from the date the petition is issued until the final stage of the divorce (Decree Absolute). In exceptional circumstances the Court could allow a shorter period than six months, however, the purpose of the minimum timeframe is to allow the parties an opportunity to reflect.
Will the proposed changes succeed?
Proposals for “no fault” divorce have been put forward before and then repealed, so what is difference this time?
The recent Bill received a significant amount of public attention due to the Supreme Court decision in the case of Owens and Owens. In this particular case, even though the marriage had irretrievably broken down, the judge concluded that Mrs Owens had failed to legally prove in the divorce petition that her husband had behaved in such a way that she could not reasonably be expected to live with him. As a result of this, Mrs Owens must remain legally bound to remain in a marriage that she no longer wanted to be part of. Mrs Owens has to wait until February 2020 to apply for a divorce on the basis of five years’ separation. After this decision, the Bill gained significant momentum with support from senior judges, policy makers and the general public.
A number of critics have stated that by changing the current law, it will be easier for couples to obtain a divorce. This is not necessarily the case, as the proposed amendments still have a minimum time frame of six months from the petition stage to the final stage of the divorce apart from exceptional circumstances.
On 9 April 2019, the Government published its response to the consultation by stating that the legislation would be introduced, as soon as parliamentary time allows. Watch this space.
The Queen's Speech
The Queen's Speech in October 2019 confirmed plans to reintroduce the Divorce, Dissolution and Separation Bill in Parliament.
Our hope is that this will lead the way for divorces with less conflict, and significantly less impact on the children involved in these cases. However, we are not out of the woods legislatively speaking given the Government minority in the House of Commons and a general election looking increasingly likely before too long.
We must hope that the overwhelming support shown by MPs, the legal profession and the general public ensures speedy progress through the system so that we can start looking ahead to fewer contentious and disruptive divorces.