The decision comes after the plight of Tini Owens, who has been denied a divorce from her husband (who defended the divorce petition) as she has been unable to prove that her husband had behaved so unreasonably that she could not be expected to continue to live with him.
Family professionals have long argued that current divorce laws are archaic and desperately need changing. At present, a divorce can only be obtained if one person blames the other, saying that the marriage has irretrievably broken down, based on one of five reasons, which are:
- unreasonable behaviour
- two years’ separation with the agreement of the other party
- five years’ separation without the agreement of the other party
This does not reflect current lifestyles, and research has shown that couples are often citing fault, usually unreasonable behaviour, as a way of getting out of the marriage quicker, even though both sometimes sayunreasonable behaviourhas not taken place. Consider the latest statistics from the Office for National Statistics (ONS), (link to Commons briefing paper ‘No fault divorce) which shows that 58% of all divorces in England are based on fault, compared with only 6% of those in Scotland, where a divorce can be obtained after one year if both peopleagree – no fault citied. Also, in research carried out by the Nuffield Foundation (link to document), 29% of those questioned said that the reason they had given for starting the divorce was not the actual reason for the separation and divorce.
The Tini Owens case went all the way to the Supreme Court. It was heard and the divorce denied in 2018. This court said that although the judgement was based on current law and it could find no other way, it felt ‘uneasy’ about the decision. Indeed, Lady Hale said that she found the case ‘troubling’, adding that she found the original trial did not allow for a full picture of Mr Owens’ unreasonable behaviour to be seen and, had Mrs Owens not said that she did not want such an action, Lady Hale would have sent the case back to the original court to be reheard. So, Mrs Owens has been left with no option to but wait for five years before she is able to divorce her husband without his agreement.
Following this case, the government started to write new act of Parliament – which is the only way that the law can be changed. A 12 week consultation on the introduction of no fault divorce was held toward the end of 2018, with Justice Secretary, David Gauke, saying that it cannot be right for the law to “create or increase conflict between divorcing couples”, and advised a new law will make the divorce process “less acrimonious” and allow families to “look to the future”. The consultation, the results of which are awaited, proposed:
- Removing the ability to allege fault.
- Removing the need to prove that the couple have lived apart.
- Removing the need to provide evidence of the other spouse’s conduct.
- Introducing a notification process whereby either spouse, or both, can notify the court of their intention to divorce.
- Removing the ability to contest the divorce.
Juliette Dalrymple, mediator and director of Family Matters says
“Mediation aims to find reasonable, less acrimonious solutions to separation and divorce. It doesn’t make sense for families or childrenthat the first step in divorce is blaming the other person, when, in fact, many couples who use mediation as a route to divorce both accept that they want the divorce. The blame game inevitably causes conflict and more stress, which can only be bad for the couple and any children. This can only lead to it being more difficult to make arrangements for the children in the future.”
We await the government’s next move on the introduction of no-fault divorce – which it has said will be swift – and will keep readers informed.