No fault divorce
Current law dictates that a court cannot say a marriage has broken down irretrievably without one or more of five “facts”. Only two of these facts are applicable within two years of separation and these are fault based – adultery and behaviour.
Many people, including family law solicitors, have campaigned for many years to make the process less antagonistic. It makes no obvious sense to make people allege faults if you want to encourage them to settle their issues as amicably as possible, using as little court time as possible.
The situation has been highlighted in the long running case of Owens v Owens. Less than 1% of divorce applications are defended, but Mr Owens defended a petition that would otherwise have gone through the undefended process without comment. The judge found that Mrs Owens had failed to prove, within the strict meaning of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him.
The case eventually reached the Supreme Court in 2018, with much publicity. The Supreme Court however dismissed the petitioner’s appeal, whilst recognising the system needed review. It said that it was for Parliament, and not judges to change the law.
The government has now agreed that the law needs review. Key points in this review include:
- The breakdown of a marriage is a difficult time for families. The decision to divorce is often a very painful one. Where children are involved, the effects in particular where there is ongoing conflict, can be profound
- Under current law in England and Wales, couples must either live apart for a substantial period of time before they may divorce, or else they must make allegations about their spouse’s conduct. This is sometimes perceived as showing that the other spouse is “at fault”
- Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children
- A proposal to reform the legal requirements for divorce, shifting the focus from blame and recrimination to better support adults to make arrangements for the future
- To make sure that divorcing couples are not put through legal requirements which do not serve their or society’s interests and which can lead to conflict and accordingly poor outcomes for children
The government is currently going through a consultation to consider adjusting what the law requires to bring a legal end to a marriage that has broken down irretrievably. This adjustment includes removing the ability to allege “fault”.
Whilst the actual divorce process is likely to change, there is no intention to change the way that the court deals with children issues and financial issues.
Resolution, the national body of family law solicitors, of which GA solicitors is a member, played a major part in the campaign to bring about a change in the divorce law, and continues to do so.