Reform of UK Divorce Law – An End to the Fault-Based System
By Bethany Dolphin, LLB – Trainee Solicitor
Announcements were made by the Government on the 9th April 2019 for the first major reform of UK divorce law in over 50 years. The reforms are set to change the archaic system of fault-based divorces.
The basis of the proposed reforms by the Government are to ensure that the decision to divorce continues to be a considered one, giving spouses the opportunity to change their minds, and to ensure that they are not put through legal requirements which do not serve their or the state’s interests and which can lead to ongoing conflict and poorer outcomes for children.
The announcement comes following the controversial Supreme Court decision in the case of Tini Owen and a 12 week Government consultation.
Tini Owen was seeking a divorce due to the fact that she was unhappy in her marriage. However, her husband refused to consent to the divorce proceeding. The Supreme Court made the controversial decision to dismiss Mrs Owen’s appeal, meaning that the couple must remain married until at least 2020 when she will be able to rely on 5 years’ separation if her husband still does not consent to a divorce.
The decision of the Supreme Court and the backing of Baroness Hale pushing for a drive to change the old divorce law have led to these recent announcements. Baroness Hale has called the present laws ‘unjust’. In the Judgement in Tini Owen, she stated that since the time of the Matrimonial Causes Act, social norms have changed with the most significant change being that marriage is now a partnership of equals. It was Baroness Hale’s opinion that the appeal should have been allowed but that she was reluctantly persuaded to dismiss the appeal on the facts of the case.
Under current UK law, a couple must have been married for 12 months in order to begin divorce proceedings. To start proceedings immediately from that date, a couple must use a fault-based reasoning. These are adultery or unreasonable behaviour. This ‘blame culture’ of UK divorce law can often lead to ongoing animosity and conflict between separating parties. This causes problems especially in cases where parties need to continue working together following a divorce to raise their children. The Government is seeking to reduce this conflict by moving towards non-fault-based divorces.
Under the proposed new reforms, couples would be able to issue divorce proceedings on a joint basis once they have been married for 12 months. Being able to issue on a joint basis will mean less legal fees for the divorcing couple and places value on a couple working together rather than against one another to obtain their divorce. A couple working as one is a key aspect of a marriage, which will now be mirrored in the new divorce process.
The only factor they will need to rely on is that the marriage has irretrievably broken down. This move away from the fault-based system will undoubtedly be welcome news for couples who have simply fallen out of love and do not want to pass blame on one another in order to obtain a divorce.
Under the current law, the only way to avoid a fault-based divorce is to wait a period of two years whereby a petition can be lodged based on two years separation with consent. The proposed reforms will mean there is no requirement to wait such a long period in order to issue a non-fault-based petition. It will also remove the occurrence of cases such as Tini Owens where the other party refuses to consent to a divorce.
The proposed reforms will also offer couples a period of ‘meaningful reflection’. It will impose a minimum time frame from the date the divorce petition is issued until Decree Absolute of 6 months. Once this time passes, couples will need to re-confirm their wish to divorce. This will allow couples the chance to consider whether they do in fact want their marriage to be over and will avoid instances of people rushing into divorce and then changing their mind. Under the current laws, a non-fault-based divorce can reach Decree Absolute in as little as 4 months.
The reform will however retain the two-stage divorce process of Decree Nisi and Decree Absolute. This will again allow parties to reconsider their decision to proceed with divorce up until Decree Absolute is granted.
There will undoubtedly be some criticism of these proposed reforms. The new non-fault-based system means that the process for a couple to obtain a divorce will become a lot easier. There will be no need to prove adultery or unreasonable behaviour. If the process becomes easier, will this mean more people revert to issuing divorce proceedings rather than attempting to work on their marriage?
What will happen to the original 5 factors for a divorce of adultery, unreasonable behaviour, 2 years separation with consent, 5 years separation and desertion? Will these be removed if a couple can simply state their marriage has irretrievably broken down and there is no longer a need to rely on one of those factors? This may cause upset for wronged spouses who wish to be able to list their partner’s unreasonable behaviour or adultery. Will they still be able to do this under the new law?
When will the reforms be made? Well under the announcements last week the Ministry of Justice has said that new legislation will be introduced ‘as soon as Parliamentary time allows’. We will simply have to wait and see.
There are clearly still uncertainties and parts of the proposed reforms which need to be considered in more detail prior to their implementation. However, the reforms are a big step forward in reconsidering the outdated divorce laws and moving away from fault-based divorces and the conflict they create.
References
- BBC News 09.04.19 – https://www.bbc.co.uk/news/uk-47860144
- Owens (Appellant) v Owens (Respondent) [2018] UKSC 41
- The Guardian 09.04.09 – https://www.theguardian.com/law/2019/apr/09/no-fault-divorce-law-coming-as-soon-as-parliamentary-time-allows
- The Ministry of Justice – Reducing Family Conflict – Government response to the consultation on reform of the legal requirements for divorce (April 2019)
- Matrimonial Causes Act 1973