Fri 17 Jan 2020

It's your fault, no it's your fault

Whose fault was it anyway? - Stepping forward to 'No Fault' divorce in England and Wales.

On 13 June 2019 Justice David Gauke introduced the Divorce, Dissolution and Separation Bill into the House of Commons. In September it was dropped due to its lack of progress as the government scrambled to prepare for Brexit on 31 October 2019.

The recent Queen's Speech to Parliament put the Bill back onto the agenda, although the process must begin afresh with MPs moving to pass the legislation. It is understood by the writer that it is now full speed ahead, and that the government has put divorce reform back on the political agenda with a real enthusiasm that this change is necessary for society.

The Bill brings long awaited changes to the Matrimonial Causes Act 1973 and in particular the introduction of a 'no fault' divorce in England and Wales.

As it stands there is currently only one ground for divorce in England and Wales - that being that the marriage has irretrievably broken down. Parties must then rely on one of the following five facts to support this: adultery, behaviour, desertion, two years separation with consent and five years separation.

The difficulty comes in that often parties who have decided to separate amicably do not want to wait for two years to get divorced. Neither do they want to begin a blame game when neither party is really responsible for the separation. In the past this has led to a sham exercise where one party agreed to accept the 'blame' and the other to petition for divorce based on 'unreasonable' behaviour. At first the Petitioner in this situation was encouraged to rely on behaviour as generously as possible so as to not to ruffle the feathers of the Respondent, especially before financial negotiations had taken place. However, with recent 'light' behaviour cases being turned away at court, many parties and solicitors are being forced to ramp up behaviour petitions just to get them through the court. 

So what about when no party is at 'fault' but one party simply doesn't want to be divorced? Within the current legislation they can effectively trap the other party for five years in a loveless marriage. In the recent case of Owens v Owens, Tini Owens was denied the right to divorce her husband for five years as he refused to consent to the divorce. Mrs Owens, whose marriage had broken down, then tried to rely on Mr Owens' behaviour in her petition. When Mr Owens defended the petition the Family Court ruled that his wife had indeed not proven his behaviour to be unreasonable enough to be the cause of the marriage failure, with the Judge calling her allegations 'flimsy and exaggerated'. The Supreme Court upheld the decision that within the current legislation Mrs Owens would need to remain unhappily married until she could rely on five years separation, unless of course Mr Owens has a change of heart and granted his consent.

Historically, the public has aligned with the current fault based system within divorce proceedings. In part as it held a guilty party accountable for the failure of a marriage. Some believe it has also made it harder to divorce and therefore encouraged couples to work harder at their marriage, rather than just throwing in the towel at the first sign of trouble. While these opinions are still arguable, what has become clear is that fault based divorce certainly doesn't work for many, and in particular can have a much wider negative impact on those separating who have children.

Currently in England, financial, divorce and child proceedings are all dealt with separately. Yet there is a clear contrast in how the parties are encouraged to interact with each other in each of these proceedings. Within financial proceedings parties are advised to voluntarily disclose assets and try to reach a settlement, indeed they are given numerous opportunities to do so throughout proceedings. Within child proceedings parents are reminded again and again that they should strive to co-parent effectively and reach mutual decisions for the benefit of their children, whom they will share long after separation. Yet within divorce proceedings parties must be prepared to dish out the dirt on their partners if they want a shot at separating quickly.

With many countries having moved away from fault based divorces including Australia, China, Spain and Germany, it seems certain then that England and Wales will also step forward towards no fault divorce. Family solicitors and couples alike will be hoping that Parliament will follow through and make this a priority for 2020.


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