A Court of Appeal decision just released has highlighted the desperate need for the introduction of no-fault divorce in England & Wales, with the President of the Family Division, Sir James Munby, denouncing the current law as "based on hypocrisy and lack of intellectual honesty." This comes almost 5 years to the day of another Court of Appeal decision in which the same criticisms of this outdated and unjust law were made, and yet we are no further forward. Why?
The Court of Appeal case concerned the marriage of Tini Owens, who sought to overturn an earlier court decision refusing her application to divorce her husband, Hugh Owens. Mrs Owens alleged that the marriage had irretrievably broken down due to his unreasonable behaviour. Mr Owens challenged this, claiming that the marriage had not broken down, and so a judge was required to consider who was right. The examples given by her included a failure by him to provide her with love and affection, mood swings that led to frequent arguments and making disparaging remarks about her in front of friends and family.
However, while the judge acknowledged that the marriage had broken down, he refused Mrs Owen's application as he felt the allegations were of the "minor kind of altercations to be expected within a marriage". The Court of the Appeal decided that the judge had not applied the law incorrectly and so felt unable to grant Mrs Owen's appeal, albeit clearly reluctantly, acknowledging that while this would leave her trapped in a very unhappy situation it was for the Government, and not the court, to change the law.
In reality, most divorcing couples won't find themselves in the same position as Mrs Owen, as very few divorces are opposed. But many more find themselves in the unhappy situation in which they are required to blame the other in order to obtain a divorce and resolve the arrangements that need to be made arising from their separation. As a divorce lawyer myself, I have lost count of the number of clients who have questioned whether it is really necessary, unwilling to blame their spouse, particularly where both feel they have just grown apart, as is so often the case nowadays.
And yet necessary it remains. In order to obtain a divorce in England and Wales, the person seeking the divorce has to establish that the marriage has irretrievably broken down by claiming one of five facts. Three of those require a period of separation of at least two years, and given that many separating couples may not want to wait that long, the only options available is to claim that the other has either committed adultery (which won't be applicable in many cases and not possible at all for gay couples) or behaved so unreasonably that the other cannot be expected to live with them.
A balancing act often has to be performed between finding examples that are not so anodyne as to be rejected by the court (a risk arguably made more likely by this case) and yet not so contentious or inflammatory as to lead to their spouse to not cooperate. In Sir James Munby's words, this often involves "collusion", in that the couple agreeing to examples of unreasonable behaviour merely to get the divorce approved by the court.
Resolution, the national association of family lawyers dedicated to adopting a non-contentious and constructive approach to resolving family disputes, have long been campaigning for an introduction of no-fault divorce, having seen the damage that the current situation does to so many families. The need to find fault with one of the couple can often set a sour tone for the rest of the process, making it more difficult to resolve the arrangements that need to be made in an amicable manner, and introducing or compounding acrimony when it is least needed.
However, despite numerous calls to change the law, the Government refuses to do so. A Private Members Bill introduced in 2015 seeking no fault divorce was kicked into the long grass, and only last month, the justice minister Lord Keen confirmed that there were no plans to do so. Perhaps they are reluctant to open themselves up to the charge of making divorce easier, but the reality of the modern world is that couples do separate, and we need to question any assumption that divorce should be difficult or unnecessary and unjust hurdles placed in the way. Worse, the stance is contradictory when successive Governments have encouraged couples to resolve their differences out of court, an approach made far more difficult when blame is in the picture.
One may wonder why, in the 21st century, adults are required to ask for the court's consideration and approval of their decision to get a divorce (no such approval, after all, is required to get married). But it is even more egregious that where there is ample evidence of the damage that acrimonious divorces can do to both the couple and any children they have that the law ultimately requires them to start that process by attributing blame for the relationship breakdown. There is no justification for the Government refusing to change this unjust requirement. It's time to end the blame game and introduce no-fault divorce.