Government Announces “No Fault” Divorce to be Implemented “As Soon As Parliamentary Time Allows”

Following a consultation from the government, the Justice Secretary David Gauke announced on 9 April 2019 that divorce laws will be changed in an effort to “end the blame game”. The changes are due “as soon as parliamentary time allows”.

What is the current law?

In England and Wales, there is one ground for divorce – the irretrievable breakdown of the marriage. Currently, couples wishing to start divorce proceedings and satisfy the Court that their marriage has irretrievably broken down must prove one of five facts: adultery, desertion, “unreasonable behaviour”, two years’ separation (with bilateral consent) or 5 years’ separation if the divorce is contested.

Consequently, the majority of couples have to rely on the fault of one party to obtain a divorce.

Why is this a problem?

The announcement follows the highly publicised case of Tini Owens, who saw her application for a divorce denied by the Supreme Court in August 2018. It often comes as a surprise to people that being in a “loveless and desperately unhappy” marriage does not entitle one to a divorce in England and Wales. Indeed, many are even more shocked to find out that a Court has the power to prevent a divorce at all.

As family lawyers, we see the negative impact that the current divorce law can have on couples and on their children every day. The requirement to apportion blame often leads to unnecessary conflict and hostility. This makes it more difficult to achieve our goal of dealing with the breakdown of the marriage amicably and preserving ongoing parenting relationships.

How will the law change?

The new proposals will require a six month reflection period upon making the application. Couples will simply need to state that the marriage has broken down irretrievably, and they will have the option of making a joint application. Furthermore, there will be no scope for a spouse to refuse divorce, protecting spouses from finding themselves stuck in Tini Owens’ position.

What are the benefits of the proposals?

This is the first time that divorce laws will be changed since The Matrimonial Causes Act 1973. “No fault” divorces are expected to be warmly received by both the public and the family law community, who have long campaigned for these changes.

It is thought that the changes will eliminate unnecessary conflict and lead to a more conciliatory approach by both parties, which will undoubtedly benefit divorcing couples and their children. In short, the changes should prove a step towards making divorce law fit for purpose in the modern age.

What are the limitations to the proposals?

Whilst the introduction of a “no fault” system is a broadly positive development, these changes are not expected to automatically make the divorce process easier, quicker and less expensive. It is important to remember that arrangements involving children or financial issues arising from the divorce are often the most costly and complicated aspects. As family lawyers, this is what we spend most of our time dealing with, and the planned reforms do not affect these matters. 

It is of course hoped that by removing the potential for arguments about the divorce itself, such issues will be resolvable more swiftly and with less hostility. However, further investment in the Courts is required to further improve the divorce process, in order to reduce delays and provide a less stressful experience for divorcing couples.

How soon will the reform be implemented?

It can (and often does) take months for new legislation to be brought into force, whilst parliament agrees on the wording to be used. With the government’s commitment still stretching no further than promising to bring “no fault” divorce into law “as soon as parliamentary time allows”, there is no telling how long this will take. Family lawyers will certainly be keeping an eye on the progress of the legislation over the coming months.

At Franklins we fully support Resolution’s ongoing campaign for a no fault divorce, and welcome the Government’s current proposals.  We sincerely hope that the proposals become a reality sooner rather than later, and open the door to other positive developments too. In the meantime, if you are currently experiencing a relationship breakdown and would like advice on divorce, finances or children matters, please contact a member of our Family team on family@franklins-sols.co.uk or 01604 828282 / 01908 660966. We offer consultations of 30 minutes at a cost of £150 plus VAT and would be happy to advise you.