In what will be the biggest change in divorce law for 50 years, the Government has committed itself to introducing “no fault divorce” with new law to be introduced as soon as Parliament can find time.
This is a change which has been welcomed by almost everybody who deals with family breakdown as it finally appears that ‘no-fault’ divorce will be the law.
No Blame, No Game
Divorce was last overhauled in the 1970s and since the Matrimonial Causes Act 1973, the legal position has been that, although there was one ground for divorce – that the marriage had ‘irretrievably broken down’ – every case had to be pigeonholed into one of five ‘facts. The only ‘facts’ that did not require waiting for at least 2 years, were adultery and ‘unreasonable behaviour’.
When reform proved too complicated in the 1990s, dropping fault was shelved and divorcing couples were left to carry on the blame game, even though it worsened conflict, as the Nuffield Foundation repeatedly proved.
In the absence of reform, people in the legal system tried to cooperate to find ways to reduce recrimination and indeed official judicial Guidance was given that the allegations should be as inoffensive as a Judge could reasonably interpret as signs that the marriage had indeed broken down. We made that approach work for a decade.
Unfortunately, that ‘on the nod’ approach to avoiding offence in divorce petitions was torpedoed by the case of Mr and Mrs Owens.
High Drama in the Supreme Court: Owens v Owens
The media got interested when Mr Owens spent a considerable amount of money to stop his wife getting a divorce: most commentators would probably say that his reduction of family assets by spending so much on lawyers to delay divorce should have been evidence in itself that there was ‘unreasonable behaviour’. Alas, it was not and as Mr Owens had enough money to fight the case to the bitter end, the case went to the Supreme Court.
In the Supreme Court, when the judiciary went over the case with the finest of fine-tooth combs, they found that Mrs Owens had not clearly proved that there was ‘unreasonable behaviour’ and ‘irretrievable breakdown’ to the satisfaction of the trial judge so she could not have a divorce.
Top judges Lord Wilson and Lady Hale had the frustrating job of announcing that Mr Owens had ‘won’ his case, but went on to announce very loudly and clearly that Parliament must reform the law, because fault-based divorce law was no longer fit for purpose.
Mr Owens ‘won’ his battle, but the reaction to the asinine nature of the law means he has lost the war and reform is finally on its way to aid women like his wife.
Blame it on the Sunshine, Moonlight, Good Times or Boogie (but not your spouse!)
Faced with a tidal wave of opinion that blame ‘creates or increases conflict between divorcing couples’ to an unacceptable degree even this Canute-like Government had to accept that fault had to go.
The proposed new system will avoid decisions such as Owens in future, not only by removing the need for ‘conduct-based’ arguments, but by removing the ability of spouses to contest a divorce. We understand that couples will eventually be able to issue divorce proceedings jointly.
This follows the relatively recent introduction of an online-system for issuing divorce proceedings. Taken together, it is hoped that these changes will further simplify what has for some time been a largely administrative process.
Having anticipated these trends, Major Family Law has, for the last 8 years, offered a fixed-fee package of £150 for cooperative ‘no fault’ divorces within England & Wales – in addition to a no-obligation, initial consultation for those who want the assurance of support from a family lawyer.