It was in July this year that the Supreme Court reluctantly told Tini Owens that despite being in what she described as a wretchedly unhappy marriage she wasn’t entitled to a divorce until 2020. Why? Because the law states that being in an unhappy marriage is not in itself a sufficient reason to divorce. In the absence of any agreement by her husband, she would need to be separated five years before divorcing. However, following a consultation launched this week by the Justice Secretary David Gauke, this could all change, and it undoubtedly should.
The law as it currently stands is only ground for divorce in England and Wales is the irretrievable breakdown of the marriage. This must be proved by one of five “facts”. Three of those rely on periods of continuous separation of at least two years, and in order to start divorce proceedings immediately, fault must be alleged by way of either adultery or behaviour. In 2015, 60% of divorces in England and Wales were granted on those two “facts”.
The Government proposes that while the ground for divorce should remain the irretrievable breakdown of the marriage, it would be no longer necessary for any of the five facts to be proved. All that would be necessary would be to give notice to the court of one’s intention to divorce, stating that their belief that the marriage had broken down, following which there would be a minimum time frame before the divorce could be finalised. It also proposes that the ability to challenge the divorce be removed.
These reforms are long overdue. The law is outdated, unfair and in many cases unwanted. As a divorce lawyer, I have lost count of the number of separated clients who are shocked to find out that if they don’t want to wait at least two years before they divorce that they will need to blame their ex or be take the blame themselves. For many, this doesn’t reflect the real reason for the breakdown of their marriage. Others just want to be able to move forward with their lives, not dwell on what went wrong and why.
Worse, the law can often make the process more hostile and acrimonious. In 2017, the Nuffield Foundation published the ‘Finding Fault’ research report which called for reforms to divorce laws. Their research found that 62% of petitioners and 78% of respondents said that using fault had made the process more bitter, with 21% of fault-based respondents saying that it was harder to agree the arrangements for the children, and 31% thought it had made sorting out the finances harder.
This matters. There is an overwhelming amount of evidence of the damage that parental conflict can do to children. Studies have shown that children show signs of emotional and behavioural distress when exposed to ongoing acrimony between parents, which can manifest itself through anxiety, depression and anti-social behaviour. It can also negatively effect their development. Given that the breakdown of a relationship is already a difficult time for families, it is shocking that the law still restricts attempts to minimise the impact of that, and could actively make it worse.
While some opponents to reform have argued that it would make divorce easier, the ‘Finding Fault’ study found that there was no evidence that fault prevents or slows down the decision to divorce. In fact, There was some evidence that it may actually shorten the time from break up to filing the divorce petition, and that fault was more likely to be associated with shorter marriages.
Given that the divorce rate in England and Wales is 42%, one could take the view that retaining fault based divorce hasn’t made divorce less likely, just more unpleasant. It also fails to treat separating couples as adults capable of making their own decisions, yet I have never spoken to any client seeking a divorce who has made the decision rashly or lightly. In this context, insisting on its retention suggests an unpleasant moral dimension of seeking to punish those who separate.
We’ve been here before, of course. It was over two decades ago, in 1996, when Parliament passed a law introducing no-fault divorce, but this was never implemented due to concerns about the process. Since then, there have been many and repeated calls for change. The family lawyer group Resolution have been campaigning for no fault divorce for years. However, following the damning ‘Finding Fault’ study and the widely publicised case of Mrs Owens, it feels there is a now real momentum for change.
The Government’s consultation closes in December 2018. For the sake of Tini Owens and many others like her, it is vital that the Government doesn’t lose its nerve. This must be the beginning of the end of the blame game.