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Is there a fault in the law on divorce?

View profile for Georgina Stavrou
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Many are surprised to hear that there is actually only one ground for divorce in England and Wales being the irretrievable breakdown of the marriage. This has been the position since 1973 and unless a married couple have been separated for at least two years, the party petitioning for divorce must ‘blame’ the other party for the breakdown of the marriage.

There has been widespread criticism of the requirement to ‘blame’ under current law. Some argue it is unfair to apportion the blame on one spouse. Others consider it to be the cause of further acrimony between spouses during, what is already, a very difficult time.

In 2015 Richard Bacon MP sponsored a Private Members ‘No Fault Divorce Bill’ which aimed to allow a divorce to proceed with a simple declaration by each party that the marriage had broken down, without the need to apportion blame.  The notion of a ‘No Fault Divorce’ has been met with support by many family practitioners, but despite this support, it was announced that the Bill will make no further progress, which means that the law will remain as it is for the time being.

Earlier this year a wife’s petition to end her 37 year marriage was refused by the Court of Appeal because her husband disputed the unreasonable behaviour allegations made against him. Even though defended divorces are very rare, the Court in the first instance found that the wife (Mrs Owens) failed to demonstrate that the marriage had broken down as a result of the husband’s unreasonable behaviour. Judge Tolson found that the husband did not behave in a way that the wife could not reasonably be expected to live with him. The wife appealed the decision claiming that the dismissal of her divorce petition meant that she had to remain “unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage”.

This decision was upheld by the Court of Appeal who considered the evidence and agreed that Judge Tolson had correctly applied the current law. The President of the Family Division, Sir James Munby examined the effect of the dismissal of the wife’s petition and the current law which he described as “based on hypocrisy and lack of intellectual honesty.” Although the Appeal judges acknowledged the need for change, they agreed that change needs to come in the form of amended legislation through Parliament.

Notwithstanding the consensus of the Appeal Judges, the wife’s application will now be heard by the Supreme Court. This has been welcomed by many practitioners including the National Chair of Resolution, Nigel Shepherd who commented that “In today’s modern society, it should not be the case that someone is being forced to stay in a marriage she does not want to be part of, and is now having to go to the highest court.” It will be interesting to see the Supreme Court’s stance in relation to this issue, and what effect their decision will have on the future of divorce law in this jurisdiction.

Interestingly, as we wait for Mrs Owen’s case to be heard by the Supreme Court, a report on the current divorce law and practice in England and Wales is due to be released on 30 October 2017. The report follows a study led by Professor Liz Trinder of Exeter University, which focused on the issue of “finding fault” on divorce. The report will make interesting reading as the research involved a national opinion survey, court file analysis, interviews and focus groups with family lawyers.

In view of the above, it seems inevitable that the law in England and Wales needs to change but the questions to ask are: When will it happen? What will be required to obtain a no fault divorce? It is worth noting that many other jurisdictions have a workable no fault based system. For example, in the United States spouses often cite “irreconcilable differences”, and in France it is possible to obtain a divorce by mutual consent. Could something similar be introduced here?

Some critics claim that there seems to be reluctance by the Government to change the law on divorce. It is possible that there is concern over the future consequences in introducing a no fault divorce such as: increased divorce rates in UK, and the undermining of the institution of marriage. It is also possible that the Government are simply too busy dealing with the UK’s divorce from the EU to deal with this issue at the present time. 

If you require legal advice, please contact our specialist family lawyers on 020 7935 3522

Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.

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