14 September 2018
Divorce reform… or not?
The government has announced a consultation about ‘no-fault divorces’ because, the Justice Secretary David Gauke said, the present system creates ‘unnecessary antagonism’.
The move comes in the wake of the Supreme Court decision on 25 July 2018 which upheld earlier decisions of the lower courts refusing a divorce to Tini Owens, a 68-year-old woman. Mr Owens defended his wife’s petition and so, after hearing oral evidence from both parties, on 25 January 2016, His Honour Judge Tolson QC decided that Mrs Owens had failed to prove that her husband’s behaviour was such that she could not reasonably be expected to live with him.
The decision has provoked much discussion and there is much sympathy for Mrs Owens, including from the Supreme Court itself, having to remain married to Mr Owens (albeit in name only since they have been living separately since February 2015).
It has also reignited the debate about whether what is commonly referred to as ‘no-fault divorce’ should be possible.
In fact, we have that now since, although to establish that a marriage or civil partnership has broken down irretrievably, the spouse or civil partner who commences proceedings (the petitioner) has to establish one of the following facts:
- that their spouse has committed adultery and that they find it intolerable to live with that spouse (although this fact is not available to same-sex couples);
- that their spouse has behaved in such a way that they cannot reasonably be expected to live with that spouse (which is the fact relied upon by Mrs Owens);
- that their spouse deserted them for a continuous period of at least two years;
- that they and their spouse have lived apart for a continuous period of at least two years and their spouse consents to a decree being granted; or
- that they and their spouse have lived apart for a continuous period of at least five years (which is the fact it is thought Tini Owens will now rely upon in February 2020, when she and her husband will have lived apart for five years).
The basis of the petition, and the reason for the breakdown of the marriage, are irrelevant save in very exceptional circumstances to the outcome of financial proceedings or to arrangements for any children.
However, we know that many people believe they will be blamed or punished if the divorce petition is based on facts 1 or 2. Additionally, many marriages end because the couple drift apart and so cannot establish fact 1 or 2, nor do they want to wait two years. So increasingly petitions were being presented that recorded fairly trivial behaviour and such petitions, if unopposed (at least up until the Owens decision), led to decree absolute.
Those in support of the reform give these factors as to why it is needed. However, those against it believe that divorce is already too easy and, for instance, distressed spouses who have been left because their spouse is in a new relationship are likely to feel further aggrieved if their spouse was able file for a ‘quickie divorce’.
The consultation needs to therefore take into account the feelings of all parties involved. Perhaps one solution which would do so would be to remove fact 4 and reduce the length of time required by facts 3 and 5 to one year. Another alternative could be to adopt the simplified procedure available in Scotland, where a couple can prove that their marriage has broken down after being separated for one year with the consent of both spouses, or for two years without consent.