No fault divorce bill..the pattern for future reform?

23rd July 2018 Family Law

As family lawyers await Wednesday's judgement in the Owens v Owens Supreme Court appeal, last week's action in the House of Lords brought calls for a no fault divorce reform into sharp focus. Former President of the Family Division, Baroness Elizabeth Butler-Sloss, introduced a private members' bill in the House of Lords last week. This simple yet thoughtful proposed piece of legislation would, if passed, require the Ministry of Justice to review the divorce law and update parliament on its progress at regular intervals.

Appended to the bill is a schedule suggesting a possible alternative to the current divorce and civil partnership procedure. The single ground for divorce would continue to be the irretrievable breakdown of the marriage. However, rather than having to 'prove' one of five facts unreasonable behaviour, adultery, two years' separation with consent, five years' separation or two years' desertion one or both parties would simply have to notify the court of their application for a divorce and to then confirm that after a minimum waiting period of nine months. As now, parties could not apply for a divorce until one year has passed since their wedding. If no confirmation is received by the court for a two year period, the application would expire.

There might well be tweaks to the procedure, and (I would recommend) a modest reduction in the waiting period, but this seems like an elegant and well thought out solution to the problem of separating couples either having to 'find fault' or spend at least two years in legal limbo before starting the divorce process.

There is a big but though. This is a private members bill and, unless the government throws its weight behind it, it is unlikely to become law. However, with the publicity generated by Owens and statements by the justice minister's statements earlier in the year indicating that he was receptive to the possibility of reform, maybe, just maybe, this could be adopted. This is not just a crusade by the lone backbencher but a research-backed intervention in the issue by a respected figure who was at one time the most senior family judge in the country. Depending on whether Owens manages to capture the public's attention later in the week, we might hear more about this.

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Katie Lowe is a Partner located in Manchesterin our Family department

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