No Fault Divorce - a Step Closer?

Back in September 2018, only 8 months ago, I wrote an article entitled “No Fault Divorce” in which I somewhat tongue in cheek suggested that the reforms that could see the introduction of a blameless legal end to a marriage may still take time: both Parliamentary time and an appetite for real change.

It has taken Parliament 50 years since the Divorce Reform Act of 1969 to consider a change to the law.  50 years during which social attitudes towards divorce, cohabitation and having children out of “wedlock” have changed beyond recognition. 

So how will the latest proposals fare and when, exactly will this come about?  As a divorce lawyer, I have been asked numerous times since the last flurry of news reports on this subject at the end of 2018 if they could have a no fault divorce.  Despite press reports early in April 2019, we are still some way from the law actually changing. 

The proposals being put before Parliament are that the five underlying grounds leading to an irretrievable breakdown of a marriage (desertion, unreasonable behaviour, adultery, 2 years separation where the other party consents and 5 years separation) are done away with.  There will no longer be any apportioning of blame, no more waiting for 2 years if you don’t want to apportion blame. 

The new law will simply rely on the fact that there has been an irretrievable breakdown of the marriage.  One spouse can apply for the divorce; the other cannot object but can join in with the application.  Confirmation of the divorce will then follow after a period of reflection, originally suggested as being 9 months but now widely reported as being 6 months.

The new law will allow for one or both spouses to apply or confirm the irretrievable breakdown. 

Some of the more familiar conditions will continue to apply – the parties must have been married for at least 1 year before the application can be made; there will continue to be a 2 stage process to obtaining the divorce (currently the decree nisi and decree absolute) – although these stages are likely to have much more user friendly names under the new proposals.

The most common questions coming now are

                With divorce being so easy, will it encourage more people to get divorced?

                Will it lead to less acrimony between separating couples?

In 2006 the law changed in Scotland allowing for no fault divorces, and this saw a spike in the number of divorces applied for from 10,875 in 2005 to just over 13,000 in 2006.  But numbers have settled back again, and there is no suggestion from the statistics that the new law actually encourages divorce.

By 2015, only 6% of divorces in Scotland relied on “fault” being laid at one spouses’ door.  In England and Wales, the figure was 60%. 

The Office for National Statistics has reported that in 2017, 42% of marriages ended in divorce, with 101,669 divorces starting that year (and a further 338 same sex marriages ending in dissolution).  This means that around 60,000 couples have divorced in just one year, using the fault of one or the other as the reason for the irretrievable breakdown. 

But will these reforms actually see a reduction in the acrimony between divorcing couples? 

One of the most publicised cases in 2018, and which may have led to the resurrection of consideration for a change to the law, was the case of Owens –v- Owens.  Mrs Owens started divorce proceedings on the grounds of her husband’s unreasonable behaviour. He did not agree that the details (particulars) of his unreasonable behaviour amounted to sufficient evidence there had been an irretrievable breakdown of the marriage.  The judge agreed and poor Mrs Owens will have to remain married to her husband until they have been separated for 2 years (or 5 if Mr Owens still objects).

This case was widely reported because it was so unusual.  But day-to-day experience will tell you that the main cause of acrimony between divorcing couples is not the grounds on which the divorce will be commenced, but who is entitled to what from the assets of the marriage. 

Did we read as much about the reason why Sir Paul McCartney and Heather Mills separated as compared to the financial claims made by Heather Mills?  Her astronomical claim for £125m was reduced to (only) £24.3m and the press had a field day reporting on the proceedings.  There was a huge amount of bitterness between the parties in court and almost theatrical goings on where Ms Mills was representing herself. 

This case is reflected daily in the family courts up and down the land, although on a much smaller level.

When are we actually going to see these reforms come in to place?  My earlier article suggested that the government was too absorbed with Brexit to have time in the parliamentary timetable for such wide reaching reforms, and I was right.  The Divorce (etc.) Law Review Bill was introduced in the House of Lords as a Private Member Bill, receiving its first reading on 18 July 2018.  No second reading date has been given, although the consultation period concluded in December 2018. 

All Bills have to pass through 2 readings, a committee stage, a report stage and 3^rd reading in the House where it was introduced.  It then has to pass through the same stages in the other House before amendments can be considered, debated and agreed.  Only then will it be given Royal Assent, and there is no limit to the time between the conclusion of a Bill’s passage through Parliament until it is given Royal Assent and becomes law. 

For those couples who have separated recently, or separate in the months to come, the change in law will not affect their choices.  So it may be some time yet before we start to see the first “no fault” divorces come through the courts. 

Before deciding to wait for the new law to come into effect, speak to an experienced family lawyer at Biscoes who will be able to advise you on the best options in your circumstances.