Government is planning new ‘no-fault’ divorce system

The government is drawing up plans to end the ‘blame game’ for separating couples, which often sees one partner accusing the other of unreasonable behaviour to get a quick divorce.

There are currently five reasons for being granted a divorce by the courts: adultery, unreasonable behaviour, desertion, two years separation if both agree to the divorce, or five years separation, even if the husband or wife disagrees.

This has led to an increasing number of couples using claims of unreasonable behaviour as a way avoiding the requirement to wait two years.

Ministers say they want to reduce the antagonism of citing fault and the anxiety it creates, at an already trying time for couples and their children.

Therefore, a new notification process will allow people to notify the court of the intent to divorce, while removing the opportunity for the other spouse to contest it.

Justice Secretary David Gauke said: “Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples.

“That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.

The proposals are set out in a government consultation and will apply to marriages and civil partnerships.

Proposals detailed in the consultation include:

• retaining the sole ground for divorce: the irretrievable breakdown of a marriage
• removing the need to show evidence of the other spouse’s conduct, or a period of living apart
• introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
• removing the opportunity for the other spouse to contest the divorce application.

The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute).

This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.

The government announcement follows the highly publicised case involving Tini Owens, aged 68. Her husband Hugh Owens, who is 80, refused her request for a divorce. After a long legal battle, the Supreme Court “reluctantly” ruled against Mrs Owens using the grounds of unreasonable behaviour to end what she described as a loveless marriage.

The five justices said they had misgivings about dismissing her appeal and asked Parliament to consider reforming the divorce laws.

The Family Law Act 1996 scrapped fault-based divorce but it was never brought into force because the government at the time feared there would be a backlash from the church and others who were opposed to making divorce easier.

Lord Mackay of Clashfern, the former Conservative lord chancellor who introduced the 1996 Act, welcomed these latest developments. He said: “The present divorce ground of unreasonable behaviour requires allegations that are hardly ever challenged and often exaggerated by one spouse against the other, which tends to exacerbate the breach of relations between them.

“Where there are children, it also renders more difficult agreeing arrangements for them. In 1996 parliament passed an act to abolish this requirement. I would be glad that it may happen now.”

Sir Paul Coleridge, chairman of the Marriage Foundation and a former family High Court judge, told the Times: “This is a development that must be resoundingly welcomed by all of us who know the current divorce law is a fake fault system, which drives people to commit perjury on a wholesale basis if they are not prepared to wait to divorce for two years or longer.”

We shall keep clients informed of developments.

Please contact Kathryn Ainsworth if you would like more information about the issues raised in the article or any aspect of family law.