Divorce – Is it time for a change?

Resolution’s “Good Divorce Week” (w/c 26 November 2018) seems an opportune time to discuss the current divorce process and to ask whether it is still a good fit in today’s modern society.

Resolution is an organisation of family lawyers who are committed to non-confrontational divorce, separation and other family problems. Their stance is that “fault based” divorces should be replaced with a new system where fault plays no part.

Currently in England & Wales and Northern Ireland parties can apply for a divorce on the ground that their marriage has irretrievably broken down and they then choose one of five available facts to explain to the Judge why this has happened. The facts are: Adultery, Unreasonable Behaviour, 2 Years’ Separation (with consent), 5 Years’ Separation (no consent) and Desertion. Interestingly Scotland’s separation facts are 1 Year (with consent) and 2 Years (no consent) and Ireland has always had no fault divorce.

The high profile 2018 Supreme Court appeal case of Owens v Owens has highlighted to the wider public the fundamental problems with the current divorce process.

Mrs Owens applied for a divorce based upon her husband’s unreasonable behaviour, having separated from him in 2015 and moving into separate accommodation next door. Mr Owens defended the application stating that it did not meet the requirements of a petition based on this fact in accordance with S1 (2)(b) of the Matrimonial Causes Act 1973. The Judge agreed and the petition was dismissed.

Mrs Owens appealed the decision asking the Court to consider the subjective impact Mr Owen’s behaviour had upon her when considering whether it is reasonable for her to continue to live with him. The Court held that the test for this was both subjective and objective and in July 2018 the Court confirmed that her appeal was dismissed.

The outcome of this decision means that Mrs Owens will have to remain married to Mr Owens until February 2020 whereupon she will be able to submit an application based upon the fact of the parties’ 5 years separation for which no consent is required.

As at 2018 over 100,000 divorces are granted annually with the unreasonable behaviour fact being the most commonly used by 52% of heterosexual couples and 83% of women and 73% of men seeking same-sex divorces.

The trouble with a fault-based system is that it can and often does have much wider reaching consequences. For example, parties entering into a divorce will often need to reach an agreement in respect of associated finances or in making arrangements for their children. They may find it increasingly difficult to do so having had to endure what Resolution refers to as “The Blame Game” in order to obtain a divorce. Such an approach can lead to unhelpful acrimony between the parties and, as a result, inflated legal fees to conclude their matter or matters.

Resolution’s suggested alternative is for a statement of marital breakdown to be filed by one or both parties. The parties then have to wait for six months to give them both time to consider their decision and to ensure that this is still their desired outcome. After six months if one or both of the parties files a declaration confirming that the marriage has broken down irretrievably then the divorce should be made final.

Additionally, parties who have been living separate and apart for a period of time before filing an application shall have their waiting period reduced accordingly. Therefore a couple living separate and apart for six months should have no waiting period and in certain exceptional circumstances the waiting period should also be shortened.

This approach not only removes the “blame” element but it also gives the opportunity for both parties to file their applications and declarations instead of deciding who should apply or, in some cases, each party trying a “first past the post” approach to filing their application with the Court which again only leads to further acrimony.

Some commentators have stated that a no-fault approach will diminish the sanctity of marriage by making it too easy to divorce. This is not necessarily true. Those seeking a no-fault divorce will not necessarily undertake an “easier” process, every divorce comes with its own emotional and financial tolls regardless of the length of the marriage and therefore the real question is whether blame has to be included in the process to allow the parties the outcome they want. This of course remains to be seen.

About the writer:

Claire North is a Family Law specialist and a member of Resolution. She is based at Curwens Hoddesdon Office. She offers an initial consultation for an hour at a reduced rate of £75 + VAT. To make an appointment please call 01992 463727.