Light at the end of the tunnel for no fault divorce?

11 September, 2018

It has been reported that the Justice Secretary, David Gaulke, is to begin a consultation on no fault divorce, calling for the current fault based system to be abolished.

The current divorce law is governed by the Matrimonial Causes Act 1973, however in 1990 the Law Commission identified a number of problems with the legislation.  Of particular note is that they identified that the fault based divorce rules provoked unnecessary hostility, and caused problems for children by making the conflict between their parents worse.  The Family Law Act 1996 included provision for no-fault divorce provided couples had taken part in compulsory information meetings.  Unfortunately that part of the legislation never came into force, and today divorce law in this country is still being governed by an act which is almost 50 years old.

The Supreme Court in the recent case of Owens v Owens concluded that within the parameters of the law, they were unable to do anything but uphold the lower courts’ decisions.  They indicated that Mrs Owens had not sufficiently proven that the marriage had broken down due to Mr Owens’ behaviour.  She was therefore not entitled her divorce at this time, but would have to wait until 5 years had elapsed at which point she would be able to reapply on the basis of 5 years separation.  Mrs Owens won’t be able to do that until May 2020.

The judgment of the Supreme Court concluded with a clear invitation to Parliament to consider reforming a law which is no longer fit for purpose.  That the call appears to have been heard will no doubt come as a great relief to family solicitors, judges and the public alike.  

It is understood that the consultation covers proposals for a single ground for divorce of irretrievable breakdown and would end the requirement that that be evidenced by one of five facts.  This would also apply to civil partnerships.  It is anticipated that the proposals will include a notification system, whereby after a defined period, if one spouse maintains the marriage has broken down they become entitled to divorce.  

There will undoubtedly be opposition to these proposals, with fears that it will undermine marriage, and make it too easy for spouses to separate.  My view, as a practitioner, is that the decision to divorce is never made lightly.  The current system involves needless acrimony and conflict for no apparent purpose other than to service a historic legal requirement.  It would be of great benefit to the spouses going through the process and their children if as much of this could be removed as possible.  This would enable them to better co-parent together if necessary, and gives them the best opportunity to remain on good terms.

It remains to be seen exactly what is proposed by the Ministry of Justice, but it is essential that moving forward we have a divorce system fit for the 21st century, which meets the needs of modern families. 

If you have any questions on the above then please contact Claire Tollefson on Claire.tollefson@crippspg.co.uk or 01892 506191.