No Fault Divorce

Eleanor Parsons - Writer

This piece will consider the introduction of No Fault Divorce into English and Welsh law, particularly following the highly publicised case of Owens v Owens in 2018. It will consider the old position, the one to be introduced shortly, as well as the pros and cons of this area of Family law, alongside a brief comparison with other jurisdictions.

The Process
Contrary to popular belief, not everybody applies for a divorce is granted one automatically. In English and Welsh law, there is only one ground for divorce - irretrievable breakdown of the marriage. For this to be satisfied, there must be one of five facts proven - adultery, unreasonable behaviour, desertion, 2 years separation with consent and 5 years separation without. This is set out under the Matrimonial Causes Act 1973. Section 2 of the Act requires that a court cannot rule on irretrievable breakdown unless one of those facts has been proven.

This process is widely accepted as trite law in England and Wales, but it would be incorrect to suggest that the Owens case was the first time that criticism against these limited factors had come to the fore. Even in recent history, Richard Bacon attempted to introduce no-fault divorce into legislation through a Ten Minute Rule Bill back in 2015. This did not proceed and was therefore unsuccessful.

Going back further, The Law Commission published six key reasons that raised issue with fault based divorce in 1990. Following this, there was an attempt to change the law through the Family Law Act 1996, but it was swiftly repealed after there was widespread complaint about the new provisions and their failure to work in practice. Since then, the debate has somewhat simmered under the surface, with practitioners making pragmatic case by case adaptations to assist struggling couples with their petitions, circumventing the lack of parliamentary enacted change.

Owens v Owens [2018] UKSC 41
However, the whole debate came to a head again in 2018 through the Owens v Owens case. The case made it all the way up to the Supreme Court on appeal, where Mrs Owens’ divorce still was not allowed. The Supreme Court stated that this was because her case did not satisfy the ground or facts for divorce under the current law. They added that it was for Parliament to change the law, not the Courts, if they felt this position was no longer correct in today’s societal context. This forced a 68 year old woman to stay with her 80 year old husband, against her will, 40 years after their initial marriage, which had been described as irretrievable by her since 2012.

It also sat uneasily with key individuals such as Lady Hale (current President of the Supreme Court), who publicly supported the introduction of no fault divorce - albeit, as long as this was to be done through the proper Parliamentary means. It was clear that the law needed to be considered - both morally and within an increasingly secular society, where the sanctity of marriage no longer holds the same weight that it once did.

However, it is important to note that the Owens case was itself rare - as many divorce proceedings are not disputed by the respondent spouse. In simple terms, it is widely accepted that if a relationship has broken down to the point that one spouse has commenced divorce proceedings, the other will usually accept it (albeit potentially grudgingly, adding extra hostility to an already contentious and emotional situation) rather than fighting through court process to remain married. It could therefore be argued that this new provision will have less impact than on initial glance in the reality for many divorcing couples.


Key issues of the ‘old’ system
The Family Courts are known for slow and potentially drawn out proceedings, due to the vast amount of cases needing attention at any one time. Due to this, divorcing couples have found themselves caught in a lengthy and acrimonious battle through legal process, with fault needing to be proven in order to satisfy the singular ground for divorce. The blaming culture caused by having the five stringent factors has only added heat and anger to an already uncomfortable process for all involved. Some relationships simply fail, and the old system does not allow for this.

All this comes without considering the financial cost of divorce proceedings, where legal aid is no longer available in most Private Family Law cases following the cuts made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This added extra pressure on both litigants, and also the whole Family Court system itself. Matrimonial matters made up 43% of total Private Family Law proceedings in 2017 alone, as per the Ministry of Justice Family Court Statistics Quarterly. They made up 16% of cases that came through the Personal Support Unit in 2017/18 also, showing this is a problem for Litigant in Person divorcees too. To knowingly continue to restrict divorcing couples to a lengthy fault-based process, adding strain to an already overburdened court system, whilst an alternative was on the table, would have been unreasonable.

The old system also had its faults where it came to vulnerable spouses. Those who were financially vulnerable were less likely to have the means to leave the marital home, and so found themselves stuck in a situation where they could not leave the physical situation that they wished to, nor could they satisfy the requirement to have been ‘separated’ for 5 years, as per the D8 Divorce petition form. A move away from the 5 year requirement could therefore help to empower spouses that find themselves in such a situation. From prior experience of working in the Personal Support Unit in Cardiff, I have seen instances first-hand where this has been a practical issue for some clients.

Issues of the new way forward
As with most changes to family and matrimonial law, the major criticism regarding this change comes from religious groups with a vested interest in maintaining the status quo and sanctity of marriage. These groups consider that removing the fault element of divorce makes this area even easier to access, and puts the idea of marriage even further away from its once heavily religious roots.

Others hold a clear opinion that If there has been examples of one of the five original factors mentioned above, then this should be evidenced in the divorce petition and not overlooked. In other words, it is right that the ‘offending’ spouse should be blamed for their wrongdoing, and identified for their part in the failure of the marriage.

This is a contentious area however, as it returns the debate back to the volatile concepts of fault, blame and conflict. At the very least, in our present system we already know 43% of ‘blamed’ spouses disagree with the reasons stated in the divorce petition, as per Trinder’s research. This could suggest we must accept that in this area, there will likely not be an agreed upon reason for the ending of a marriage. Surely the logical answer in this situation is to move away from the ‘blame game’ altogether?

Other jurisdictions
To briefly consider some other jurisdictions who have moved towards a No Fault system allows for a wider understanding of the potential benefits for the English and Welsh system if they follow suit. We should not be fooled into thinking we are leading the way with this no-fault idea. Using the United States of America as an example, Oklahoma passed the countries’ first no-fault divorce laws back in 1953. It is interesting to note that even with fears raised by religious and other interested groups, the US have actually seen their divorce rates lower since the enactment of these no fault procedures. If the same could be replicated here, this could be a positive outcome for our overburdened system. On the other hand, this could just be put down to a move away from marriage in society altogether, which has not been explored in this piece.
Scotland provides an interesting comparison point as a close neighbouring jurisdiction. They didn’t fully endorse a ‘No Fault’ system, but instead reduced the time limit to prove separation from our 2 and 5 years respectively to 1 and 2 years respectfully under the Family Law (Scotland) Act 2006. This seems to be a good compromise that has offered a pragmatic solution without huge legislative change needed.

Conclusion
Ultimately, it seems the move to rectify an area that engaged such public debate in the summer of 2018 can only be a good one. This is not only for the spouses who wish to divorce under the new No Fault process, but also for public faith in the Family Court system. Whilst it should be noted this provision is yet to be formally enacted in law, David Gauke (Justice Secretary) has made it clear that it will be introduced in the next session of Parliament.


It is a fundamental principle of law that the laws that govern and control us should reflect the people and societal norms of the time. In an increasingly secular and diverse society, where divorce is no longer the taboo it once was, a pragmatic change to avoid further conflict during marital breakdown is surely a move in a more sensible direction that should be welcomed.


Sources:
https://www.co-oplegalservices.co.uk/media-centre/articles-sep-dec-2017/no-fault-divorce-pros-and-cons/
https://www.liveabout.com/the-pros-and-cons-of-no-fault-divorce-laws-1103067
https://www.rocketlawyer.co.uk/blog/can-no-fault-divorce-work-in-the-uk-2/
https://www.theguardian.com/lifeandstyle/2019/feb/08/no-fault-divorce-to-become-the-law
https://www.theguardian.com/law/2018/jul/25/supreme-court-rules-unhappy-marriage-not-grounds-for-divorce-tini-hugh-owens
https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN01409
https://uk.practicallaw.thomsonreuters.com/1-590-4465?transitionType=Default&contextData=(sc.Default)#co_anchor_a149549
https://www.familylaw.co.uk/news_and_comment/terrible-muddle-the-issue-of-no-fault-divorce
http://www.nuffieldfoundation.org/finding-fault-divorce-law-practice-england-and-wales
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/228985/0636.pdf
https://www.morton-fraser.com/knowledge-hub/no-fault-divorce-no-copy-scotland
http://gilsongray.co.uk/no-fault-divorce/
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695363/family-court-stats-oct-dec-2017.pdf
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688056/d8-eng.pdf
https://www.supremecourt.uk/cases/uksc-2017-0077.html
https://www.thepsu.org/media/1888/psu-annual-report-2018.pdf
Photo Credit - Kelly Sekkema - https://unsplash.com/photos/E8H76nY1v6Q


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