During the last few years there has been increased discussion and lobbying over the issue of ‘no-fault’ divorce in England and Wales. Arguably the most notable call for reform came from the Supreme Court last year in the case of Owens v Owens  UKSC 41. That was the case where a wife failed to prove that her marriage had broken down due to her husband’s alleged behaviour. When handing down their judgement the Justices appeared somewhat uneasy about their decision explaining that they were merely interpreting and applying the law, adding that it was not for them to change it.
Within a year of that decision the government has released proposals to reform the 40 year old legislation. It should be noted that the proposals are merely suggestions on how the current law might change. The law has not changed yet.
The current law
Presently to end a marriage or dissolve a civil partnership in this jurisdiction you must have been married or in a civil partnership for at least one year before you can commence proceedings. Thereafter you may apply but you must satisfy the Court that your marriage or civil partnership has “irretrievably broken down”. If you are unable to prove that you have been separated from your spouse or civil partner for at least 2 years then you will need to prove that it is your spouse or civil partner’s fault that your marriage or civil partnership has broken down. This can be done by proving that the other party has deserted you for two years, or that he or she behaved in such a way that you cannot reasonably be expected to live with them. For couples not of the same sex you can also rely on the fact that your spouse committed adultery and you find it intolerable to live with him or her.
Apportioning blame on one party for the breakdown of a marriage or a civil partnership can lead to further upset and conflict during what is already a difficult time for a family. The repercussions of such acrimony can sometimes extend beyond the divorce or dissolution process. It can affect the parties approach to dealing with the finances as well as any arrangements for their children, now or in the future.
It is hoped that by removing the ‘fault’ requirement, parties can amicably agree that their marriage or civil partnership has come to an end without the need for blame.
Divorce reform (The government’s proposals as at June 2019)
Following a lengthy consultation process the government released proposals for changes to the divorce and dissolution law. The proposals are as follows:
- The ground for divorce and dissolution will remain the same in that parties will still need to show that their marriage or civil partnership has irretrievably broken down, and that they have been married for a year prior to issuing the application. However, there will no longer be the requirement to evidence either a minimum two year separation period or to apportion blame on the other party. A statement to the Court that a marriage has irretrievably broken down would be sufficient.
- One party alone or the parties together can initiate divorce or dissolution proceedings. The change being the introduction of the option for a joint application, recognising that sometimes both parties agree that their relationship has broken down.
- Removing the opportunity to contest a divorce or dissolution. Even though contested divorce or dissolution proceedings are very rare, they remain possible under the current law. The new proposals seek to end the hostility and unfairness of one party deliberately obstructing the other’s ability to end their marriage or civil partnership. However, a party may still challenge an application if there is an issue surrounding jurisdiction, the validity of the marriage, fraud, coercion or procedural irregularities.
- Retaining the two stage process namely the decree nisi and the decree absolute for married couples and conditional order and final order for civil partners. By keeping the two stage process the government seek to maintain the current position where parties are given the opportunity to reflect on and to reconsider the divorce or dissolution. It also enables any procedural irregularities or suspected abuse of process to be investigated by the Queen’s Proctor.
- Introducing a minimum timeframe of six months from the application stage to the decree absolute or final order.
- Modernisation of the language used in divorce and dissolution proceedings with the aim of making the process easier for all parties.
Whilst there have been mixed opinions amongst family practitioners on the proposals and the logistics in putting those in place, many are pleased that the issue is finally being addressed. It is hoped that the proposed reform will ease the difficult process for many spouses or civil partners across England and Wales, allowing them to separate more amicably.
Although the wheels of change have been set in motion there is currently no indication as to when exactly the law will change. There is concern about whether the government will find the time to legislate on divorce and dissolution reform bearing in mind that currently Brexit seems to be the most pressing issue.
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.