Measures to introduce no fault divorces are currently before Parliament. David Connor explains why the issue is so important.
Draft legislation contains fresh proposals to introduce no fault divorces, ending the current ‘blame game’ that means couples can be trapped for years in loveless marriages.
The Divorce (etc) Law Review Bill, which is expected to attract cross-party support, represents the first major changes to divorce legislation in nearly 50 years.
It was published on July 18, when it received its first reading in the House of Lords. A date for the second reading has not yet been fixed.
Why the present system needs to change
Under present law, the only ground for a divorce is irretrievable breakdown of marriage, which can be proved in one of five ways. The two immediate grounds are adultery and unreasonable behaviour, while the others involve a period of separation with or without consent. Parties can divorce on a no-fault basis by consent alone, as long as both spouses agree after a two-year period of separation.
If one party has deserted the other for two years, the other can apply for a divorce. The final ground is five years of separation, whether or not the other spouse consents.
The recent high profile case of Tini Owens illustrates why critics of the current system want to see changes. The Supreme Court ruled that Mrs Owens must remain married to her estranged husband until 2020 (when the couple will have been separated for five years) because he will not agree to a divorce. Mrs Owens issued a petition based on allegations of unreasonable behaviour. But Mr Owens did not accept the grounds put forward by Mrs Owens and successfully argued that his behaviour was not unreasonable.
Leading judges and organisations are backing change
The Divorce (etc) Law Review Bill follows research demonstrating that current divorce laws are causing unnecessarily distressing breakups and making conflict between couples even worse.
Support for reform comes from successive Presidents of the Family Division and Supreme Court Justices, as well as Resolution, which represents family lawyers, and the Marriage Foundation.
Research shows how a no-blame system would work
Professor Trinder’s research, entitled Finding Fault, suggests existing law is unclear, unfair, expensive to operate and creates avoidable conflict that can adversely affect children.
It is difficult to argue against Professor Trinder’s contention that ‘the divorce law is a mess, and has been so for many years’. She correctly points out that it is very easy to get a divorce in a few months – but only by blaming the other spouse.
We agree that there is a strong case for a new law involving a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a set period, perhaps of six or nine months.
This would avoid the acrimony encouraged by present legislation, which is to no one’s benefit, especially children’s.
Evidence reveals flaws in the current system
Calls for reform are underpinned by empirical evidence. A national opinion survey indicated that 43 per cent of people who had been identified as being ‘at fault’ by their spouse disagreed with the reasons cited for the marriage breakdown. Meanwhile, 37 per cent of people rebutted allegations made against them by their spouse.
In reality, these rebuttals are ignored in all but the most unusual cases, such as Owens v Owens, where Mr Owens successfully defended the case. It is telling that the court did not raise questions about the truth of a petition in any of the 592 case files analysed in the national survey, despite evidence that respondents disagreed with allegations against them.
Indeed, there is compelling anecdotal evidence that many individuals accept – or do not deny – that they have been ‘at fault’ simply to get the divorce proceedings concluded and move on with their lives.
The draft legislation represents a less destructive way for divorcing couples to do just this. We should give it due consideration because putting an end to the current adversarial culture – sooner rather than later – is in everyone’s interest.
For further advice on divorce issues, call David Connor on 01706 225621, or email him at David.Connor@whnsolicitors.co.uk