Government to consult on ‘no-fault’ divorce

In recent months, the government launched a consultation on ‘no-fault divorce’, calling for the existing fault-based system of establishing marriage breakdown to be abolished. This follows the highly publicised Supreme Court decision in Owens v Owens [2018] UKSC 41, where a wife of 40 years was refused a divorce due to ‘flimsy and exaggerated’ examples of unreasonable behaviour.

At present, a person can only petition for divorce on the basis that their marriage has irretrievably broken down, and this must be supported by one of five ‘facts’:

  1. Unreasonable behaviour by the other party
  2. Adultery by the other party
  3. Desertion by the other party
  4. Separation for two years with the other party’s consent; or
  5. Separation for five years

This means that unless a person is prepared to wait at least 2 years before divorcing (or longer if the other person does not consent), then they must allege that the other is at fault, usually using the ‘unreasonable behaviour’ fact. Unreasonable behaviour remains the most cited cause for divorce in the UK.

The consultation document ‘Reducing Family Conflict – Reform of the Legal Requirements for Divorce’ proposes “adjusting what the law requires to bring a legal end to a marriage that has broken down irretrievably”. The consultation seeks views on how best to change the law to reduce family conflict and strengthen family responsibility. The proposals would apply to marriage and civil partnership and include:

  • Removing the requirement to establish one of the five facts
  • Moving to a ‘notification’ system where parties simply notify the court of the irretrievable breakdown of the marriage (rather than apportioning blame for it)
  • Removing the ability for a spouse to contest a divorce.
  • Setting a minimum length of time for the revised legal process to end a marriage (or civil partnership)

The government’s intention is for the legal requirements for divorce to be “consistent with the approach taken in other areas of family law” in which conciliation rather than conflict is encouraged. The Government is seeking to shift the focus from blame and recrimination towards providing better support for separating couples, to help them focus on planning for their own futures and for the future of their children.

This is not the first time an overhaul has been considered. As far back as 1990, the Law Commission recognised six separate problems with the fault-based divorce rules, including that they provoked unnecessary hostility and made things worse for children by exacerbating parental conflict. The Commission’s report led to the Family Law Act 1996 which made provision for no-fault divorce, but the relevant section never came into force, being cited as unworkable.

Resolution’s former Chair and long-time campaigner for reform, Nigel Shepherd, said:

This news has the potential to be a landmark moment for divorce law in England and Wales. Resolution has been leading the campaign to end the blame game for over thirty years. For far too long, couples have been forced into needless acrimony and conflict in order to satisfy an outdated legal requirement…Every day our members see the devastating impact conflict can have on families. Apportioning blame can lead to long-term damage to relationships between children and their parents and can undermine attempts to resolve matters outside of an already overstretched court system.”

As Resolution members ourselves, we couldn’t agree more. The consultation closes on 10 December 2018 and a response is due by 8 March 2019.

If you have any questions about petitioning for divorce or any other family matter, you can call 01223 443333 and ask to make an appointment with Tricia, Adam, Sue, Simon, Gail or Jeremy.