An end to the blame game – announcement of new “no fault” divorce law

News - 09/04/2019

There was a welcome respite from Brexit headlines yesterday as the front pages were emblazoned with news that the Justice Secretary David Gauke had announced plans to overhaul to divorce law in England and Wales by introducing a “no fault” system.

Currently, unless a couple have been living separately for two years, divorce can only proceed if one spouse attributes some form of blame to the other- namely adultery or unreasonable behaviour. This stems from the regime implemented in 1973 and family lawyers have been campaigning for a change in the law for over a decade.

The proposed changes mean that a spouse who wishes to get divorced will simply have to state that the marriage has broken down irretrievably. There will then be a minimum period of six months after the petition stage to give time to reflect and an “opportunity to turn back”. At the end of that period the applicant will need to affirm their decision to get divorced before the divorce is granted.

There will also be an option for couples to apply for a divorce jointly and under the new rules it will no longer be possible for one partner to refuse if the other wishes to get divorced.

Some commentators raised concern that this change will undermine the institution of marriage by making it “easier” to get divorced- perhaps a better way of looking at the proposals is that they will give people a better opportunity to manage their separation with as little conflict and stress as possible. For many separating couples, there is a need to continue working together as parents and anything that can help promote an ongoing positive relationship can only be beneficial to a family as a whole.

The current legal requirements for divorce can have the effect of inflaming an already difficult situation and efforts by family practitioners to help couples resolve matters arising from their separation in a non-confrontational and inexpensive way have too often been hampered by a divorce system that requires fault and blame or a requirement that parties remain unhappily married long after one party has determined that the marriage has broken down.

The need for a change to the existing system was propelled into public consciousness as a result of last year’s Supreme Court decision in the case of Owens v Owens which prompted widespread calls for reform to divorce law after the courts refused to grant Mrs Owens a divorce when her petition was contested by her husband.

The Supreme Court (somewhat reluctantly) upheld the decision that while the marriage had indeed broken down and Mrs Owens could not continue to live with Mr Owens, her case had not passed the required legal test to show that her husband had behaved in such a way that she “could not reasonably be expected to live with him”.

As a result of what some might see as little more than a matter of semantics and on the basis that Mr Owens was not prepared to consent to a divorce on the grounds of 2 years separation, the law requires Mrs Owens to now wait until she has been separated for a period of 5 years before she can get divorced.

Plainly a review of the law was overdue but with the government’s recent focus being on matters European, the timing of yesterday’s announcement was a most welcome surprise.

Mr Gauke has stressed that the changes will come in “when parliamentary time allows” but there is no doubt that yesterday was a very big step towards the reform that is needed to ensure that the law more accurately reflects the needs of society and families in the 21st century.

If you have any questions regarding “no fault” divorce law or any other questions please contact Anne McAllister, Senior Associate Solicitor in our Family department. Anne is contactable either by email at [email protected] or by phone on 020 8971 1080

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