There’s rising calls for “No-Fault” divorce in England and Wales after the Supreme Court rejected in Owens vs Owens Mrs. Tina Owens’s appeal for divorce after her husband refused to accept the split. She said she felt trapped in a loveless marriage after 40 years, and now that their children had grown up she wanted to leave the marriage.
Under current laws however, the court ordered that she would have to stay married to him for five more years before she can file for a divorce without necessity of his consent or evidence of fault.
The result was not to the complete satisfaction of some of the judges, and even Supreme Court President Lady Hale commented that she “found this a very troubling case, but it was the judges’ role to interpret and apply law, not change laws laid down by Parliament”.
Lady Hale had previously remarked with regards to current divorce requirements “The contents of the petition can trigger or exacerbate family conflict entirely unnecessarily. Respondents are encouraged by their lawyers to ‘suck it up’ even though the allegations are unfair. There is no evidence at all that having to give a reason for the breakdown makes people think twice. The decision to divorce is not taken lightly, but this is not because of need to give prove one of the five facts.”
Scotland’s divorce laws require only 1 year of separation before a couple can claim that their marriage has irretrievably broken down. Lady Hale pointed out only 6 per cent of divorces were permitted on basis of adultery or behaviour compared with 56 per cent in England.
Rather than saving marriage, the procedure could make it more difficult to reconcile as couples are more likely to be at too emotionally invested to prove their side, to the detriment of their family.
Lady Hale also argued that the system discriminated against poorer couples who could not afford to live apart for two years before being allowed to make a petition for amicable divorce, and may adversely affect who has bargaining power in the settlement.
The Need to Assign Blame
The only legal basis for divorce in the UK is if it can be proven that there has been an “irretrievable breakdown” of the marriage. There are three reasons you can give to show that the marriage can no longer recover:
- Unreasonable behavior
- Long separation
For the first two, it is required to show that one of the couple is at fault. Even when the couple may agree to separate amicably, for a more speedy divorce they are legally forced to cast blame on one person – which has various other consequences for the sorting out of finances, the custody of children, and one’s reputation – and makes the eventual split more bitter than it needs to be.
For separation-based divorce, in England and Wales the couple must spend at least two years apart before they may qualify for divorce if both agree, and five years in order to separate without consent.
Divorce solicitors feel that the current divorce laws unpleasantly force couples to have wait for years up to half a decade, or instead throw blame on their spouse’s bad behavior or adultery. And when it is mandatory to paint the other party as the one at fault, there is a mindset that someone must be a winner and the other must lose. That is hardly conducive to civil proceedings.
More amicable divorces are possible when both parties acknowledge that their relationship is simply not working out anymore, and without the need to assign blame that makes the whole process much less painful and stressful for them and their children.
Reform of the Legal Requirements for Divorce
The Ministry of Justice set forth a proposal to adjust the legal requirements to end a marriage. Among the changes proposed are:
- The clarification that the sole ground for divorce remains the “irretrievable breakdown of a marriage”,
- Removal of the need for a spouse to present evidence of their partner’s conduct or period of living apart,
- The introduction of a new notification process wherein one or both parties can notify the cour of their intent to divorce,
- The removal of the opportunity of the other spouse to contest the divorce application.
- The introduction of a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).
Expectations of the Divorce Solicitor
“While the law cannot prevent the irretrievable breakdown of a marriage, what it must do is allow people to move on in as constructive a way as possible. If a relationship has any chance of survival, it cannot be right for the law to undermine this possibility by encouraging mud-slinging through the legal requirement to identify a “guilty” party,” said Justice Secretary David Gauke to The Telegraph.
Divorce solicitors love no-fault divorce proceedings because it is simply much less an awful time for all involved. There are those who might think that if the couple can agree, they could just DIY their divorce proceedings, but unsurprisingly that would just make the whole process slower and less straightforward. Judges typically look poorly on litigants in person as their unfamiliarity with the law and the law’s requirement towards assigning fault to the other party bogs down the process in “the blame game”.
The removal of the opportunity to contest the divorce is seen as a necessary step to protect those who wish to leave an unhappy marriage but are prevented by their spouse to continue their controlling behavior. However, the courts also wish to avoid a ‘meal ticket for life’ situation are making rulings to expect to see divorced couples move towards financial independence as quickly as possible after a divorce.
Reducing the time couples need to wait before the divorce process can complete from 2 to 5 years down to only 6 months in some cases is expected to reduce the amount of disturbance to the family, both emotionally and financially. Couples that separate may focus on moving forward in their new lives, maintaining amicable relations, and for their children achieve custody and co-parenting solutions without any lingering hostility to taint their relationship.
The minimum of six months was chosen from the views of the respondents to the consultation paper Reducing Family Conflict: reform of the legal requirements for divorce which ran from 15 September 2018 and ran for 12 weeks closing on 10 December 2018, as enough to provide a meaningful period of reflection and the opportunity to turn back their decision. The divorce will not be automatically applied at the end of this period but the applicant(s) must affirm the decision to seek a divorce.
Before filing for a no-fault divorce, it is best that the couple have already made an agreement about how to assign their shared assets and procedures for the continued welfare of their children. It is always best to consult with an experience family law and divorce solicitor to make sure your divorce proceeds swiftly and amicably for the good of all concerned.