Is this the end to the blame game?

Is this the end to the blame game?

The government has announced that it is launching a consultation with a view to overhauling the divorce process. If the proposals are enacted, the blame game of divorce long facilitated by divorce law may be at an end.

The overhaul comes in the wake of the recent judgement of Owens and Owens in which the Court ruled, with some reluctance, that the petitioning wife could not divorce her husband on the basis of two years separation because he had not given his consent. In his judgment, Lord Wilson stated that it was a question for the government whether the law governing divorce remained satisfactory. Indeed, it seems at odds with the very nature of marriage that the law should force two persons to remain married. Family law practitioners, of course, would have been less surprised by the judgement as they are familiar with the 5 factors that must be used to evidence the one ground for divorce, namely that the marriage has irretrievably broken down:-

  1. Unreasonable behaviour;
  2. Adultery;
  3. Separation of 2 years with the consent of the non-petitioning party;
  4. Separation of 5 years without consent;
  5. Desertion of minimum 2 years.

Ultimately, if the divorce is contested and the spouse cannot prove fault, couples face a 5 year wait before they can apply for divorce.

Significantly, the law does not recognise a no fault divorce. This can often result in a hostile and confrontational process at what is already an incredibly difficult time for the parties.  

The current proposals announced by the government on 15 September 2018 seek to remove the element of fault from the divorce process. In summary the proposals include the following:-

    • A new notification process that will allow people to notify the Court of the intent to divorce whilst removing the opportunity for the other spouse to contest it;
    • To retain the sole ground for divorce i.e. that the marriage has irretrievably broken down, but remove the need to show evidence of the other spouses’ conduct or period of living apart;
    • Views are also sought on the minimum timeframe for the process between decree nisi (which is the halfway stage of divorce proceedings) and decree absolute (the final stage) – ministers say this will allow couples time to reflect on the decision to divorce and reach agreement on the future.

Commenting on the proposals, Secretary of State for Justice, David Gauke said, ‘Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples.  That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.’ 

Campaigners are optimistic that the proposals could result in a landmark moment heralding the move of divorce law into the 21st century.  With the reforms, it is hoped that the divorce process will allow parties to continue to have constructive relationships, especially where there are children involved.

For now, the government consultation ends on 10 December 2018. Thereafter, the government has vowed to act quickly. We, therefore, eagerly await the reforms.

If you are considering a divorce or separation and wish to discuss matters raised in this article, please contact a member of the Family and Divorce team on 020 8280 2713 who would be pleased to speak with you.  

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