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No-fault divorce; why a new consultation is long overdue

End of the road sign

A new consultation announced by Justice Secretary David Gauke into no-fault divorce is very welcome news for LGFL Ltd Director Rita Gupta.

It seems so strange to many divorcing couples who walk into our offices that in an age of democracy and equality in marriage, there is still a need for grounds for divorce based in laying the blame on one spouse. It doesn’t sit with the principles of Resolution we ascribe to. The Justice Secretary’s consultation will, according to Family Law Week, “Call for the existing fault-based system of establishing marriage breakdown to be abolished.” It can’t come soon enough in my view.

 

The five facts for divorce

Under the current legislation in England and Wales, The Matrimonial Causes Act 1973, grounds for a divorce must be based on one of five key facts:

  • Adultery
  • Unreasonable behaviour
  • Desertion (for a period of at least two years)
  • Separation for a period of at least two years, in the case of an agreed divorce
  • Separation, for a period of at least five years, in the case of an contested divorce

In Scotland, couples without children of the marriage under 16 can divorce more quickly if they can prove that their marriage has broken down through:

  • One year's separation with consent of both partners
  • Two years separation without consent

 

Why reform is required

The need to allocate blame in divorce can trigger major emotion turmoil and upset for both parents and children during the divorce process, as the BBC’s legal correspondent Clive Coleman discussed:

“Many believe that when divorcing couples are being torn apart emotionally and financially, and trying to make living arrangements for their children, assigning blame to one party can only exacerbate an already stressful process…. There will be some who fear such a (no-fault) system will undermine marriage, but many believe it could remove a layer of stress and anxiety from one of life's most traumatic experiences.”

 

The Tini Owens case

While campaigners have long argued that these grounds for divorce are outdated and in need of reform, the recent case of Tini Owens has brought the issue into sharp focus. Mrs Owens wanted a divorce, Mr Owens did not. According to the law, Mrs Owens had to be separated from her husband for at least five years before she could be granted a non-consensual divorce. The Supreme Court were obliged to uphold that legal requirement, albeit reluctantly for some of the judges, locking Mrs Owens into her ‘loveless’ marriage until February 2020.

 

Grounds for change

The new consultation will examine the proposals for a new single ground for divorce of ‘irretrievable breakdown’. It is said that the Ministry of Justice also want to end the chance for a spouse to contest a divorce, and to set a fixed minimum time frame for divorce of six months. The same would apply to the dissolving of civil partnerships.

In an interview for The Times, Justice Secretary Gauke said:

“(I am) increasingly persuaded … that what we have at the moment creates more antagonism than we really need. I don’t think the best way of helping the institution of marriage is by putting bureaucratic hurdles in the way of a divorce.”

 

Welcoming the consultation

Former chairman of Resolution and long-time campaigner for divorce reform, Nigel Shepherd, welcomed the news:

“The government appears to have heeded our calls to make our divorce system fit for the modern age, and we will continue to push for this much-needed, overdue reform to be implemented as soon as possible.”

It’s been a long campaign too. The Law Commission first recommended a system of no-fault divorce back in 1990. It was to be introduced in a 1996 Act of Parliament, but the requirement for spouses to attend so-called information meetings was feared to be unworkable.

 

Consultation to legislation

It’s important to stress that this is a consultation at this stage, but it’s a strong indication of the intent for change within the government and Ministry of Justice. As Christina Blacklaws, president of the Law Society said to The Guardian newspaper:

“It’s time to bring this law into the 21st century to reflect the society we live in and we look forward to working with government to ensure the reforms are fit for purpose.”

 

Divorce with less stress

At LGFL Ltd, we take a practical and pragmatic approach to divorce. Our principal aim is to achieve the best divorce process and financial settlement for our clients, whilst always putting the interests of their children first and foremost. Divorce is stressful enough without the legal paperwork and jargon adding to it. So we keep our clients informed, explaining each stage of the process and keeping the process moving forward.

If your marriage is irrecoverably broken down and you wish to discuss the option of divorce, call us. We offer a no-obligation 30-minute consultation to qualified clients at our discreet countryside offices, or in central Reading, Berkshire.