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Whilst the Owens judgement came as a blow to many no fault divorce advocates, as we have discussed in this previous blog, it came as no surprise given the judge’s hands were tied by the wording of the legislation. The criticism of the judgement has however, had the effect of pushing parliament into action as the Justice Secretary last week confirmed proposals to remove the need for divorcing couples to allege fault.
The proposals involve retaining ‘irretrievable breakdown of the marriage’ as the sole ground for a divorce, but removing the need to rely on one of the current five facts, and instead introducing a notification process. This will allow one or both of the divorcing couple to notify the court of the intention to divorce, without providing the opportunity for the other to defend it. Either of the divorcing couple would then be able to confirm that intention to divorce after a ‘cooling off’ period, the length of which is one of the areas being reviewed by parliament in light of the proposed reforms.
Under the current system, the person applying for the divorce – the Petitioner – could be said in some circumstances to have the upper hand in financial matters because they could threaten not to apply for the final stage of the divorce, the Decree Absolute, unless the Respondent cooperates. The Respondent has to wait another 3 months after the date on which the Petitioner can apply for Decree Absolute to do so themselves. The government is looking to keep the 2 stage process but proposes to mandate a minimum timeframe, after which the Decree Absolute could be granted by either the Petitioner or the Respondent, or by them both jointly.
Baroness Deech argued the sole reason behind demand for reform is speed. She argued that efforts would be better spent reforming the financial aspects of divorce. We would argue it is a weak argument to suggest we shouldn’t reform one area because another is worse.
In other areas of family law, we have seen a shift from an adversarial, conflict heightening process, towards an amicable, cards on the table approach. Removing the ‘fault’ element brings divorce in line with this. The hope is that parties can focus on making arrangements for the future, rather than acting out a ‘blame game’ which leaves them trapped in the past.
No fault divorce could lead to a spike in the number of divorces, but this does not necessarily equate with the stability of family life being undermined, whereas the misery that goes on behind doors in an unhappy marriage does undermine this stability. Many unhappily married couples whose marriage has irretrievably broken down would be better off by removing the bitterness which comes with a fault based divorce system. By this I mean better off in an emotional sense and a financial one – as a fault based system often results in divorcing couples then being unable to come to their own agreements regarding finances and children, causing them to spend tens of thousands of pounds in pursuing matters through proceedings in court.
The government consultation is seeking your views on how best to change the law, have your say here: https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/consultation/