No-Fault DivorcePublished on: 21 March 2019
In July 2018, the supreme court held that Mrs Owens could not divorce her husband based on the unreasonable behaviour petition filed and that she would need to wait until there had been a period of five years’ separation before she could get divorced. In today’s society it seems unconscionable that a woman (or man) can be legally forced to remain married to a spouse whom they no longer love, but this was the result of the current divorce law being correctly applied by our most respected judiciary.
Matrimonial Causes Act legislation
The fundamental problem with Mrs Owen’s case was that the supreme court was applying the Matrimonial Causes Act legislation, which was created in 1973. The legislation states that the only ground for a divorce is irretrievable breakdown of the marriage, but in order to prove the same, the party bringing the divorce (i.e. petitioner) must either cite (and prove the same in the event of a defended divorce) some form of fault of the respondent including adultery, unreasonable behaviour or desertion; or they must wait a period of time before starting divorce proceedings. If the respondent agrees then the period is two years but if no consent is forthcoming then the petitioner must wait five years before they can start the divorce. The inability for a party to start divorce proceedings without waiting for a period of two years’ separation is one of the main reasons why unreasonable behaviour petitions are consistently the most common reason given in divorce proceedings, both in opposite sex and same sex couples. Most people do not want to wait two, possibly five years, before legalising their separation. Others are unable to agree a financial settlement and thus need to start divorce proceedings in order for the court to adjudicate upon the same. In such circumstances the parties are forced to consider the filing of an unreasonable behaviour petition.
The tradition of allocating blame to one party for the collapse of their marriage and detailing examples of the respondent’s alleged unreasonable behaviour can cause unnecessary animosity during a time when the parties may be feeling at their most vulnerable. Paradoxically, parties are encouraged to resolve matters amicably and this can be seen by the government’s introduction of the requirement of parties to attend a mediation appointment prior to commencing formal court proceedings in relation to children and/or financial matters. Indeed, many separating couples would like to remain on good terms and the rise of the use of collaborative law reflects this trend.
No-fault divorce petition
For many years the legal profession have been advocating the possibility of parties starting a no-fault divorce petition.
In 2018, a consultation was launched into this area of law, which proposed changes to the law governing the end of marriages. These proposed important reforms received overwhelming support by all, including the judiciary, law society and resolution. The government have now confirmed that they too are firmly behind the same.
The justice secretary, David Gauke, has confirmed his commitment to the government reforming divorce law through legislation in the next parliamentary session, which is due to start in May 2019. Many have commended the proposal to allow a divorce to proceed after a “cooling off” period has taken place, as opposed to being forced to start a fault based petition. Assuming legislation is passed, it is hoped that the new “no-fault” divorce will spare couples from the emotional harm and unnecessary stress and animosity caused by the current unhelpful ‘blame game’.