After decades of lobbying from the Law Commission, the Bar Council, Resolution, senior family law judges, and most family law practitioners, the Government has announced that divorce in the UK is to be reformed. The main change is that there will no longer be a need for one spouse to blame the other for the breakdown of the marriage.
At present, to start divorce proceedings immediately, one spouse must accuse the other of:
- Unreasonable behaviour
After two years’ separation, one party can divorce the other if they consent. Should they refuse, five years must pass before you can divorce your spouse whether they agree or not.
Once the reforms are passed, couples will only have to state that their marriage has ‘irretrievably broken down’.
The BBC states that this change brings forth the biggest reforms in divorce laws for 50 years.
Owens v Owens – the last straw
Although there have been many calls for divorce reform over the past half a century, it was the case of Tini Owens that put the nail in the coffin of fault-based divorce.
Mr and Mrs Owens had been married for 37 years and had built a prosperous life thanks to establishing a successful business which turned over around £5 million per year.
Mrs Owens, the Petitioner in the divorce, claimed the marriage was “loveless and argumentative”. She had an affair in 2012, and in 2015 she moved out of the family home and filed for divorce.
Mr Owen’s contested the claim of ‘unreasonable behaviour’. And unfortunately, Judge Robin Tolson QC, sitting in the High Court, agreed that the behaviour described by Mrs Owens did not amount to unreasonable behaviour. He stated the farmer’s attitude was simply “old school”.
The judge went on to describe Mrs Owen’s allegations against her husband as “exaggerated” and “at best flimsy”, claiming they were “minor altercations of a kind to be expected in a marriage” and “an exercise in scraping the barrel”. He also stated Mrs Owens was “more sensitive than most wives” and that she had “exaggerated the context and seriousness of the allegations to a significant degree”.
In a shock decision, the Court of Appeal upheld Judge Tolson QC’s decision, stating that being miserable in a marriage was not grounds for divorce in English law. The court emphasised that if ‘unreasonable behaviour’ was contested, judges must apply the objective test in section 1(3) of the Matrimonial Causes Act 1973 to the subjective elements of the marriage to establish whether a petitioner could reasonably be expected to live with a respondent. Mr Owen’s behaviour in the marriage did not, in the court’s opinion, was not unreasonable.
The Supreme Court, its hands tied by legislation, also upheld the decision. Tini Owens must wait until 2020 before she can be free from her marriage.
A waiting game
So, the big question is – when will these reforms be enacted by Parliament? The answer provided is when Parliamentary time allows. One of the unfortunate consequences of Brexit is that ordinary government business must take a back seat. However, given the media interest and the pressure from lawyers and groups to get the law changed, we may see the reforms enacted into law in late 2019 or early 2020.
Will divorce rates increase if no-fault divorce is introduced?
English divorce law is rather outdated when compared to other countries in the developed world, most of whom did away with fault-based divorce many years ago. Scotland reformed its divorce laws in 1982. It offers a simplified procedure whereby divorce can be applied for after one year’s separation (with the consent of the other spouse) or two years’ separation (no consent). If a quicker divorce is required, there is a fault-based system available; however, in 2015 it was found only 6% of couples choose this route. In England and Wales, 60% of those divorcing did so on the grounds of adultery or unreasonable behaviour.
There has never been any evidence that no-fault divorce increases divorce rates. However, there are plenty of reports showing the distress and conflict which can arise through a fault-based divorce.