No-fault divorce progress update

20th August 2019 Family Law

On 9 April 2019, the Justice Secretary confirmed that legislation for no-fault divorce will be introduced “as soon as parliamentary time allows„. This follows a consultation issued by the Ministry of Justice in September 2018. Here concerns were raised that the current law fuels conflict between couples by apportioning blame for the breakdown of the marriage.

Current law

As it stands under the Matrimonial Causes Act 1973, a divorce can only be granted if one side can prove that the marriage has irretrievably broken down with reference to one of five facts:

1. Adultery

2. The other party’s behaviour

3. Desertion (rarely used)

4. Separation for more than two years (if both sides agree to the divorce)

5. Separation for more than five years (if one side disagrees with the divorce).

Owens v Owens [2018]

In addition to causing hostility between couples, the need to prove fault through one of the five facts means that it is not possible to divorce simply because a person has fallen out of love with their partner. This was seen in the infamous case of Owens v Owens [2018].

Mrs Owens petitioned for divorce on the basis of her husband’s behaviour. This required her to satisfy the court that Mr Owens’ behaviour was such that she could not reasonably be expected to live with him. Mr Owens defended the case, arguing that her evidence was not enough to prove this.

Whilst the judge recognised that the marriage was loveless and, as a result, had irretrievably broken down, this was not enough to permit the divorce. He ultimately agreed with Mr Owens and dismissed the petition. Mrs Owens appealed to the Court of Appeal, which dismissed the appeal, and then to the Supreme Court, which also (with great reluctance it must be said) dismissed the appeal. Mrs Owens was forced to wait until five years had passed since separation before she could get divorced.

Reformed law the proposal

The Divorce, Dissolution and Separation Bill, introduced in the House of Commons on 13 June 2019, will:

  • Remove the five facts listed above and, as a result, any requirement to provide evidence of the other party’s blameworthiness

  • Introduce a requirement to provide a simple statement of irretrievable breakdown without further detail

  • Remove the ability to contest a divorce

  • Allow both sole and joint applications for divorce

  • Retain the two stage process of decree nisi and decree absolute but rename them as conditional order and final order, respectively

  • Introduce a minimum timeframe of six months from divorce petition to final divorce.

Consequences of the law reform

A small minority fear a no-fault divorce system will diminish the sanctity of marriage; the argument is that by making the divorce process easier, couples might not think as seriously about getting married or ending their marriage. However, the vast majority of legal professionals agree that the current law is outdated and that the proposed changes should simplify the divorce process, reduce animosity between couples and allow more focus on the division of assets and child care arrangements.

Latest update

On 2 July 2019, the Public Bill Committee completed its review of the Bill and reported it without amendments to the House. The Bill is now due to have its report stage on a date to be announced. Here the House reviews the Bill and makes any necessary amendments. If all goes according to plan, the Bill should become law in the near future, subject to what else Parliament is occupied with over the next few months. Now what could that be..?

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Paige Franks is a Paralegal located in Manchester Londonin our Family department

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