Divorce Law: A Change is Gonna Come

News - 12/03/2019

A snapshot of some of the recent developments in divorce and marital laws.

“No Fault Divorce” to become law in the UK

In the UK, divorce law has remained unchanged for almost 50 years. There is only one ground for divorce which is that your marriage has broken down irretrievably. You then have to rely on one of the five “facts” or reasons which are as follows:

  1. Adultery – your spouse had sexual intercourse with someone else of the opposite sex. You cannot give this as a reason if you lived together with your spouse for six months after finding out about the adultery.
  2. Unreasonable behaviour – your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Examples of this include physical violence and verbal or psychological abuse.
  3. Desertion – your spouse has left you without your agreement, without a good reason and with the intention of ending your relationship for more than two years, in the past two and a half years.
  4. Two years’ separation with consent – you and your spouse have been living separately for two or more years and both agree to a divorce. It is possible to rely on this reason if you live in the same household but not as a couple, i.e. you do not spend any quality time together, you do not shop together and eat separately, you sleep separately etc. – rather like students in a house share.
  5. Five years’ separation – you can apply for a divorce after five years of separation, even if your spouse does not agree.

“Unreasonable behaviour” is one of the most commonly relied on reasons, where individuals do not wish to wait until they have been separated for two or five years. Family lawyers have for years drafted relatively anodyne “unreasonable behaviour” divorce particulars in an attempt to avoid exacerbating what is already a very tough time for their clients.

Fast forward to July 2018, at the Supreme Court in London, where a lady named Tini Owens was told “reluctantly” by the judges hearing her case that she had to remain married to her husband, because she had not sufficiently proved that she was entitled to a divorce on the basis of her husband’s unreasonable behaviour.

Today, the Owens case is one that most family lawyers in the UK will be familiar with. A national family law organisation, Resolution, found that 60% of their members have experienced lawyers drafting more aggressive divorce petitions now, than before the Court of Appeal judgement in Owens v Owens.

The Justice Secretary, David Gauke, launched a consultation in late 2018 on reforming divorce law. This was met with widespread support and Gauke confirmed that he will bring in legislation reforming divorce law in the next session of parliament, removing the need for couples to either wait years or blame each other for the breakdown of their relationship.

Although Mrs Owens will still need to wait until 2020 to get a divorce (unless her husband changes his mind in the meantime), her case has highlighted an area of the law out of step with society these days and spurred on a significant change in the law.

Civil Partnerships for heterosexual couples?

The number of unmarried cohabiting couples in the UK have more than doubled in the last 25 years. A number of people mistakenly believe that “common law marriage” exists in the UK, and that they would have the same legal status as a married couple. Many cohabitees think that they will be protected financially in the same way as a spouse would be if they split up from their partner – this is not the case.

Since 2005, civil partnerships have been available to same-sex couples in the UK. In 2014, a heterosexual couple, Rebecca Steinfield and Charles Keidan, started a legal campaign for the right to formalise their union by way of a civil partnership.

At the time, the campaign received significant backlash on social media. A number of people queried why this couple would want to enter into a civil partnership, when it was open to them to get married?

Steinfield and Keidan’s reasons for wishing to enter into a civil partnership were that the “legacy of marriage” had “treated women as property for centuries” and that this was not an option for them. They said that they wanted their children to be raised by two parents who were equal partners.

On 27 June 2018, the Supreme Court ruled unanimously in favour of Steinfeld and Keidan’s argument that the Civil Partnerships Act 2004, which only applies to same-sex couples, is incompatible with the European Convention on Human Rights.

The Prime Minister said in October 2018 that this form of union would be made available to everyone, but this has not yet been brought into law. Campaigners are urging the government to deliver on its promise. Campaigner, Joanna Christina, said to Sky news, “While on the one hand I appreciate that everybody is very busy with Brexit, life does go on.”

Out with “instant” divorce in India

A “triple talaq” is a controversial practice under Islamic law where a Muslim man can divorce his wife by saying “talaq” three times in a row. One of the many problems of divorce being granted in this way was that it has left many women, and their children, without any financial support or compensation.

Although this method of divorce was already banned in Pakistan and Bangladesh, it was still a common practice in India – until the summer of 2017. Several women’s groups had been campaigning against the use of talaq for a number of years and the Supreme Court in Delhi took up the issue in 2016. In August 2017, divorce by triple talaq was declared unconstitutional by India’s Supreme Court.

The five Supreme Court judges considering this case each belonged to one of India’s main religious faiths: Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. 3-2 of the bench declared that triple talaq was “not integral to religious practice and violates constitutional morality”. This was a momentous victory for India and the 90 million plus Muslim women who live there.

The Indian Prime Minister, Narenda Modi, commended the verdict in a Tweet on 22 August 2017, where he said, “Judgment of Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.”

In January 2019, it was decided that women divorced by their husbands in Saudi Arabia will now receive a text message to inform them of this.

The Saudi Arabian Ministry of Justice said that this was “a step aimed at protecting the rights of female clients, and enhancing digital transformation with more services.” Whilst there is still much more work to be done for women’s rights in Saudi Arabia, any progress must be welcomed.

As we have seen from the above case-studies, sometimes after years of laws remaining unchanged – one case can be the catalyst for huge legal and social change.

If you have any further questions or queries in relation to any of the issues raised in this blog post please contact a member of our Family law team

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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