On the 18th July this year, the Divorce (etc.) Law Review Bill had its first reading in the House of Lords. The Bill was proposed and read by Baroness Butler-Sloss after research published by the Nuffield Foundation found that serious problems exist with the current ‘fault-based’ divorce law: that it is contrary to public policy and it leads to unfairness, exaggerated allegations by one spouse against another and unnecessary conflict which has damaging consequences for children.
The current law, as introduced over 50 years ago in 1973, allows for divorces to be granted where one spouse proves both that a marriage has irretrievably broken down and that there exists one of five specific facts. These are, in short, adultery, behaviour, desertion or separation with or without consent. Most applications for divorce cite either behaviour or adultery as the other facts require the parties to have been separated for at least two years – many couples are not willing to wait that long and wish to be divorced sooner so that they are able to move forward in their lives.
The main problem with the current divorce law, therefore, is that married persons, in order to achieve a quicker divorce, must allege either that the other has been unfaithful or that they have behaved in such a way that the petitioning spouse can no longer reasonably be expected to live with them. The latter is the more common fact relied upon and it has a high burden of proof. The behaviour alleged must be more than something trivial and if a spouse contests the divorce, a Judge will scrutinise the behaviour to decide whether it is sufficient.
The injustice with the current law can clearly be seen in the recent Supreme Court judgement in Owens v Owens. Mrs Owens applied for a divorce in 2015 citing that Mr Owens had prioritised work over home life; lacked love or affection in his treatment of her; been moody or argumentative frequently; disparaged her in front of others and as a result left her feeling unhappy, unappreciated, upset and embarrassed so that she had over many years grown apart from him. Despite Mrs Owens providing 27 examples of this behaviour when asked to expand upon it by the initial Judge, her petition was unsuccessful having not proven to the required degree behaviour which made it unreasonable for her to be expected to continue living with Mr Owens. Despite lengthy litigation and a desperate wish to be free from her marriage, Mrs Owens was denied a divorce.
In practice, most divorce cases are not defended, therefore the particulars of the behaviour written in petitions is rarely scrutinised as in the Owens case. Even so, for the recipient of a petition based on behaviour, it can, at best, be upsetting to read and, at worst, inflame the relationship such that any amicable resolution of the finances and child arrangements becomes impossible.
Parliament clearly agree and did, in fact, attempt to reform divorce law in 1996 via the Family Law Act. This introduced a four stage system. Firstly, a spouse seeking a divorce would attend a compulsory information meeting with or without the other spouse. Secondly, they would need to wait three months after which they could apply to the Court to say that the marriage had broken down. Next, there was a period of ‘reflection and consideration’ of nine months if there were no children, and fifteen months if there were children. Finally, the fourth stage was the granting of the divorce order. Upon being introduced, the system was initially piloted which received extremely negative results. The feedback was that the system was unworkable; the length of time to wait was far too long and the information meetings were rarely attended by both spouses and, if they were, they could become hostile. Due to this, the reform was abandoned and the relevant parts of the legislation repealed.
This time around, the proposed reform imposes an obligation on the Lord Chancellor to conduct a review of the law and consider the effect of replacing the current system with one that works through ‘application and confirmation’. The Lord Chancellor must consider alongside this how the proposed system would affect financial provision and arrangements for children. There would not be a change to the current ground for divorce, which would remain as an irretrievable breakdown of the marriage. This, instead of being supported by one of five facts, is proven by an application to the Court and a subsequent confirmation for that application to go ahead. There would, therefore, be no need to cite negative instances of a spouse’s behaviour, their adultery, desertion or any separation.
Another part of the application process currently proposed is that it could be made by both parties to the marriage/civil partnership jointly. This is an exciting idea that would promote the cooperation of the parties – clearly useful for ex-couples who need to be able to work together for the benefit of any children. Joint applications for divorce would obviate the adversarial ‘petitioner’ versus ‘respondent’ position currently in place.
For the confirmation aspect, one or both parties would confirm to the Court after a nine month period that they wished for the divorce to go ahead. Alternatively, the application could be withdrawn before the end of this period, say if the couple had decided to attempt a reconciliation.
Resolution, a body made up of 6,500 family lawyers who follow a code of practice in order to ‘promote a non-confrontational approach to family problems’ strongly support the reform proposal and call it a ‘landmark moment for divorce law in England and Wales’. Resolution have been campaigning for years to have the current divorce law changed and even suggested a similar reform to that which has been suggested – where one or both partners give notice that the marriage has broken down irretrievably and then, after six months, one or both of them applies to finalise the divorce. They say that this will ‘help people manage separation with less conflict, reducing the burden on the courts’.
There is a generally accepted consensus that divorce law needs to change. In Owens, all of the Judges expressed unease at the decision, though they unanimously agreed that it was the correct interpretation of the current law. Perhaps, had she exaggerated Mr Owens’ behaviour to a higher degree, Mrs Owens could have established the requirement and the divorce may have proceeded. Lord Wilson aptly described this unsavoury truth when he stated that, as Mrs Owens was said to have couched the particulars of the behaviour in anodyne terms, this ‘should have been a compliment, not a criticism.’
The Ministry of Justice also agrees that the ‘current system of divorce creates unnecessary antagonism in an already difficult situation’. The proposed reform is, therefore, eagerly awaited