Divorce without fault?
On 13 June 2019 the long-awaited Divorce, Dissolution and Separation Bill received its first reading. The Bill is intended to introduce ‘no fault’ divorce into English law, replacing the current fault-based grounds for divorce.
The present position
Currently, to divorce, a divorce applicant must state that they consider the marriage to have irretrievably broken down, and they evidence this with one of five facts. The facts are: adultery, unreasonable behaviour, desertion, two years’ separation (with the consent of the other party) and five years’ separation. This is currently the requirement in English (and Welsh) divorce law.
The proposed Bill would replace these five facts with a statement of irretrievable breakdown of the marriage, a statement which can be made by the applicant alone or by the parties jointly.
The Bill would also build into the process a minimum 20 week period between the start of the divorce and the first decree. This is intended to allow space for reflection and time for the parties to put in place arrangements for the future if they feel that divorce is still unavoidable.
The third key change would be that under the new Bill, it would no longer be possible to contest a divorce. Instead, the statement of irretrievable breakdown will serve as the conclusive evidence of the marital breakdown.
There will, under this new regime, inevitably be cases which will benefit by parties not being required to lay blame and detail accusations against the other, in order to evidence their reason for divorce. There are certainly many cases we as family solicitors have dealt with, which we can see that a no-fault divorce would have helped. Usually in a divorce there is enough history for parties to have to overcome without adding extra acrimony over what he or she did/did not do, or did/did not say in the divorce petition.
There is no doubt that minimising conflict between separating couples will help to improve the experience of children who already bear the brunt of the pain and the repercussions of their parents’ separation. Removing from the process an element of in-built conflict can only assist couples to move forward constructively and co-operatively.
It remains to be seen whether these changes will have the effect of enabling more people to divorce. The case of Mr and Mrs Owens which went to the Supreme Court in July 2018 was unusual in the lengths Mrs Owens had to go to, to try t o show that Mr Owens had been so unreasonable in his behaviour as to justify her claim that the marriage had irretrievably broken down. The claim that this meant that Mrs Owens was forced to remain married to Mr Owens, is only partially true. She would be entitled to seek her divorce once they have lived separately and apart for five years, taking her to February 2020. The Owens are a long-married couple with adult children, so the discomfort of this prolonged period is presumably felt most keenly my Mrs Owens alone. However, were Mr and Mrs Owens to have been a younger couple, with young children, then the assurance that in the end, the divorce can go through once they have lived through a five year separation would not offer sufficient solace to the parties or their children.
In January, Relate reported (https://www.relate.org.uk/about-us/media-centre/press-releases/2019/1/07/never-mind-divorce-day-fifth-people-relationship-are-staying-despite-being-unhappy) that their research found that one in five of those in a relationship stayed in it even though they were unhappy. Reasons given included, the children, hoping for improvement, familiarity, money, and commitment. At the end of the day, divorce is incredibly hard on everyone.
People do not tend to avoid it because they don’t think they can overcome the legal hurdles but because they know how tough it will be.
Relate are calling for better investment into relationship support services. Perhaps that is the way to reduce rates of separation and divorce, rather than retaining a divorce process that encourages the laying of blame.