In order for the court to hold that the marriage had broken down irretrievably, the petitioner must satisfy the court that one or more of five facts applies. Three of those facts are fault based: adultery; unreasonable behaviour and desertion. The other two facts relate to periods of separation, either two-years, if both parties consent, or five years without the respondent's consent.
A reform to divorce law was announced in April 2019, but this is not the first time that a change in the law has been considered. The Family Law Act 1996 made provisions for no-fault divorce, which were, ultimately, not implemented and subsequently repealed. Part 2 of the Family Law Act 1996 would have introduced no-fault divorce and would have required the parties to attend information meetings to encourage reconciliation where possible. Following the trial of these information meetings in 2001, the then Government concluded that the provisions were unworkable.
Divorce reform was once again thrust into the media spotlight following the 2016 decision in Owens v Owens in which a judge in the Central Family Court refused to grant Mrs Owens a decree nisi of divorce based on her husband’s unreasonable behaviour. Unusually, the husband had chosen to defend the divorce (defended divorces are very rare in practice). The judge found that Mrs Owens had failed to prove, within the constraints of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him (a requirement of the unreasonable behaviour provision).
Mrs Owens appealed to both the Court of Appeal in 2017 and the Supreme Court in 2018. Both courts dismissed her appeal. The judges in both courts, although recognising that the Owens’ marriage was clearly broken down, ruled that it was for Parliament, and not the judiciary, to change the law to enable such a marriage to be dissolved.
In September 2018, the Ministry of Justice published the ‘Reform of the Legal Requirements for Divorce’ consultation paper. The consultation, which closed on 10 December 2018, sought views on replacing the current requirements with a notification-based process.
On 9 April 2019, the Government published its response to the consultation announcing, that legislation would be introduced,as soon as parliamentary time allows, to remove the legal requirement to make allegations about spousal conduct or to live separately for up to five years. David Gauke, Lord Chancellor at the time, said that the Government would continue to support marriage but that the law should allow people to move on constructively when divorce is inevitable, and that this would benefit children.
Currently, there is no timeline for the introduction of the new legislation. However, it is widely thought that Parliament will not consider the legislation until there is a resolution regarding Brexit. Given that delays could continue until or beyond October 2019, it is unlikely that we will see any progress in respect of divorce reform until that time. It is also unclear whether the reforms will take immediate effect or whether there will be staged implementation. It is, however, clear that it will be necessary to have a period where both schemes run concurrently, and practitioners may have to deal with petitions under the old fault-based scheme as well as new petitions under the new scheme.
Turning to the proposals, in short, the Government proposes to:
Overall, having joined in the campaign for change (as supported and endorsed by many family lawyers and the Family Law Group – Resolution), we here at Anthony Collins Solicitors fully endorse the change and proposals made by the Government. We believe that giving parties greater control and autonomy in making these decisions and removing the blame and fault-based nature of divorce will ultimately help to support people to reach amicable solutions and to make decisions in the best interests of both themselves and their children.
The decision to end a marriage is understandably one of the hardest decisions to make. Regardless of the reasons for that decision, we aim to help, support and advise our clients during this difficult time and guide them towards the best outcomes for their individual circumstances.
We will update you further when the Government release the draft legislation and provide further clarity. In the meantime, should you have any queries about the process of divorce under the current legislation, please do not hesitate to contact Kadie Bennett, or alternatively you can contact the matrimonial team on 0121 212 7417.
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