The subject of divorce has attracted attention in the media recently with a reported increase in divorce cases in Wuhan following the easing of lockdown restrictions. Whether lockdown is the cause for the apparent divorce spike is open to debate and it is unclear whether the same trend will be seen elsewhere. However, such media reports do present an opportunity to reflect on the divorce law in this jurisdiction and how urgently it needs reform. Fortunately, new divorce law has been passed by parliament – the Divorce, Dissolution and Separation Act 2020.
The current divorce system in England and Wales has undoubtedly been a major topic of discussion over the last 18 months. Whilst a potential reform of the current divorce laws and a push for ‘no fault’ divorce are certainly nothing new, it was the highly publicised decision of the Supreme Court in the case of Owens v Owens in July 2018 that sparked major discussion, amongst Family Law practitioners and those outside of the profession, as to whether it was time to overhaul the legislative provision underpinning the law on divorce in England and Wales.
Divorce Law in England and Wales
Up until 1969, a person could only petition the court for divorce on the basis that their spouse had in some way been at fault for the breakdown of the marriage due to their adultery, cruelty, desertion or incurable insanity. Following a push for reform throughout the 1950s and 1960s the Matrimonial Causes Act 1973 was created, which forms the basis of the law on divorce to this day.
To obtain a divorce in England and Wales, the parties must have been married for at least one year. There is one ground on which a divorce petition can be made, which is that the marriage has broken down irretrievably. This can be proven by the petitioner using one of five statutory ‘facts’:
- Their spouse has committed adultery and, as such, they find it intolerable to live with them
- Their spouse has behaved in such a way that they cannot reasonably be expected to live with them. This is commonly, known as ‘unreasonable behaviour’ by Family Law practitioners, though this is a misleading description
- Their spouse has deserted them for at least two continuous years
- The parties have been separated for at least two years AND their spouse consents to a divorce
- The parties have been separated for at least five years, regardless of whether their spouse consents.
Whilst the MCA 1973 broadened the scope to issue a divorce petition to include two no-fault facts based on separation, it remained necessary to prove one of a limited number of statutory conditions in order to obtain a divorce.
Owens v Owens [2018] UKSC 41
Since the Supreme Court decision in July 2018, commentary on this case has been extensive and a detailed examination of the case is not necessary, however a brief overview provides useful background to the renewed push for reform.
At the time of the decision Mr and Mrs Owens were 80 and 68 respectively, having married in 1978. After experiencing some marital difficulties Mrs Owens moved out of the matrimonial home in February 2015 and petitioned for divorce in May 2015 based on Mr Owens ‘unreasonable behaviour’. Mrs Owens gave a list of examples of this behaviour in the divorce petition, as is required, and in the vast majority of cases the petition will be approved by the court with no issues.
In this case however, Mr Owens defended the petition stating that the examples given by Mrs Owens were not sufficiently serious to satisfy the test for unreasonable behaviour. For context, fewer than 1 per cent of divorce petitions are contested each year, however in all cases the particulars of behaviour must be serious enough to meet the threshold required to rely on this fact.
The court at first instance found in favour of Mr Owens, stating that the behaviour she had described in her petition was that of a kind to be expected in a marriage. Once the matter reached the Supreme Court, though reluctant to do so, they accepted that their job was only to apply the legislation laid down by parliament and they too found there to be no behaviour that Mrs Owens could not reasonably be expected to live with.
The result of this was that the marriage could not be said to have irretrievably broken down and Mrs Owens’ petition was dismissed.
The decision gained widespread publicity, largely due to the perceived unfairness of Mrs Owens being forced to remain married to Mr Owens for five years from the date of their separation, despite their marriage clearly having broken down. This led to a renewed discussion in the media about the need for reform of the divorce laws and the introduction of ‘no fault’ divorce, i.e. a divorce which does not have to fit a limited number of statutory facts and does not require that one party has done something to cause the divorce.
The Divorce, Dissolution and Separation Act 2020
Following the widespread attention brought about by the decision in Owens, the government published a consultation paper in September 2018 ‘Reducing family conflict: Reform of the Legal Requirements of Divorce’.
A Bill was introduced on 12 June 2019 , which finally received Royal assent and became an Act of Parliament on 25 June 2020. The new law is not expected to come into force until the Autumn of 2021.
Changes to the law under the new legislation
The new legislation will implement a number of key changes in divorce law in England and Wales:
- Whilst irretrievable breakdown will remain as the sole ground for divorce, the requirement to provide evidence of conduct or separation with one of a number of ‘facts’ has been removed and instead the petitioner will simply be required to provide a statement confirming irretrievable breakdown
- It will no longer be possible to contest the basis of the divorce as the statement of irretrievable breakdown will be taken as determinative. Contesting the petition will only be possible on the basis of jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance
- Introduction of an overall notice period of 26 weeks, based on a minimum timeframe of 20 weeks from petition to decree nisi (currently decree nisi can be applied for once the petition has been issued and the Respondent has completed the acknowledgement of service) and six weeks between decree nisi and decree absolute (currently six weeks and one day)
- It will be possible for the parties to make a joint application, so that one person does not have to petition the other
- The language used will be modernised; for example a decree nisi will be a ‘conditional order’ and a decree nisi will be a ‘final order’.
Some elements of the current law will be retained, such as the two stage decree process (though this will be re-named as stated above) and the bar on making an application for divorce within the first year of marriage.
Implications of the new law
It is anticipated that the new law is will bring about a number of positive changes:
- Reduced hostility between the divorcing couple, as the requirement for one spouse to blame the other for the divorce will be dispensed with. This is particularly beneficial in the case of behaviour-based petitions, where antagonistic particulars of behaviour can often cause increased hostility and conflict between the parties right from the outset, which may then set the tone for negotiations or court proceedings regarding finances and children. A reduction in conflict between the parties will also clearly be beneficial for any children of the family
- It will no longer be necessary for the parties to spend time and incur costs agreeing who will prepare the petition and what the particulars of behaviour will be, meaning they can immediately focus on more important discussions regarding children and finances
- Spouses may be more likely to enter into mediation or other forms of collaborative practice as conflict will be minimised from the outset. It is hoped this will lead to a reduction in court applications
- The process will be much more straightforward for spouses acting in person, and in cases of behaviour petitions will reduce confusion and eliminate the risk of them preparing insufficiently strong particulars of behaviour which leads to the petition being rejected, or excessively aggressive particulars which raises tensions
- Couples who mutually wish to divorce will no longer have to wait for two years after their separation to do so. This will eliminate the financial burden on the spouses and negative impact on the children of the couple being separated but forced to remain married for two years
- It will no longer be possible for an Owens type scenario to arise, whereby one party defends the petition and keeps the other locked in the marriage until five years from separation.
Conclusion
It is difficult to find negatives to this long awaited and much needed reform to divorce law and there is little doubt that once enacted it will finally be possible to dispense with much of the unnecessary hostility arising between spouses right from the outset of divorce proceedings.
This article was written by Michael Finnegan.