Divorcing Fault: Time to Stop Blaming and Shaming?

Breaking up is hard to do and current laws in the UK and Wales can make it a lot harder. Dr. Samantha Davey, Lecturer in Law at the University of Essex, explains why divorce law is ready for reform.

Divorce law in England and Wales has been discussed, dissected and been the subject of dismay for decades. Many practitioners and academics alike take issue with a fault-based approach to divorce because it is seen as out of date and unnecessarily cumbersome. Under the Matrimonial Causes Act 1973, there is one ground for divorce, namely that the couple’s marriage has irretrievably broken down. In order to establish this, there is a need to demonstrate that one of the following reasons exists: adultery; unreasonable behaviour; two years separation with consent; two years separation with no consent (desertion); or five years separation.

Aside from encouraging divorcing couples to play the blame game in divorce papers, which only serves to encourage conflict, there are two other main difficulties with these reasons for divorce. Couples’ relationships may break down for reasons other than adultery and unreasonable behaviour. Couples may grow apart or may decide that they wish to go their separate ways. Such couples may prefer to do so without assigning blame to one party but may not wish to wait two years before they divorce. The current procedure requires one party to seek to divorce another and demonstrate some type of fault on the part of the other party.

As a consequence, couples who may have ended their relationship amicably, sometimes feel forced to strain the ground of ‘unreasonable behaviour’ (e.g. domestic abuse, social isolation or debt) to find a reason for a speedy divorce or, as an alternative, wait two years before divorcing. Meanwhile, the spouses may form new relationships and may wish to move on with their lives.

Another issue is that if one party contests the divorce, this may delay the divorce unnecessarily. In practice, this is rare, but it happened in the case of Owens v Owens [2018] UKSC 41 which highlighted how out-of-date and potentially absurd the existing law on divorce is. In this case, Mrs Owens sought a divorce on the basis of her husband’s unreasonable behaviour.  Mr Owens contested the divorce and the judge who assessed the divorce application determined that her evidence of the alleged unreasonable behaviour of Mr Owens was insufficient and refused to permit the divorce. This led to a protracted court battle which led to an important decision on divorce by the UK Supreme Court. Lord Wilson affirmed the decisions of the initial judge and the Court of Appeal but stated that: ‘Parliament may wish to consider whether to replace law which denies to Mrs Owens any present entitlement to a divorce…’.

For many years, despite repeated expressions of dismay about the state of the law on divorce, this area of family law has not been a priority for reform by the government. The Law Commission proposed reform in 1990 and expressed a number of concerns with the divorce law. It was seen as unfair and unjust, as undermining the potential to save marriages and as likely to exacerbate conflict. The Owens case, however, gave the government a powerful judicial nudge to consider reform seriously.

Consequently, in April 2019, the Justice Secretary announced that divorce legislation would be reformed to help reduce family conflict. The ground ‘irretrievable breakdown’ would remain but the five facts would be replaced with a requirement to provide a statement about irretrievable breakdown. It would also provide for a joint divorce application to be made by both parties and remove the potential for one party to contest the divorce.

In essence, the proposed legal reform via the Divorce, Dissolution and Separation Bill ends the use of fault based divorce and provides well-needed modernisation to the law on divorce by reducing conflict and by preventing a scenario like Owens v Owens from occurring again. Currently, the Bill is passing through the House of Lords where it will reach the report stage on the 17th of March 2020. It will be a welcome change which will bring divorce law into the 21st century.

For further discussion of the Owens case and an overview of the proposed changes to the law on divorce, see: Samantha Davey, Family Law (10th edn, Palgrave Macmillan 2020).

This article first published on the MIHE Blog and is reproduced on the Essex Law Research Blog with permission and thanks. The original post can be accessed here.

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