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On 9 April 2019 Justice Secretary David Gauke announced that the government will be seeking to introduce new legislation removing the need to find fault when petitioning for divorce. As David Gauke summarised, ‘it cannot be right that our outdated law creates or increases conflict between divorcing couples…now is the time to end this unnecessary blame game for good’. This has been a widely championed proposal that will fundamentally change the way in which divorce proceedings are approached both procedurally and, it is hoped, emotionally.

Grounds for Divorce

At present there are five facts, on one of which a petitioner must rely to prove the only ground for divorce, namely the irretrievable breakdown of their marriage:

1. Adultery

2. Behaviour

3. Desertion (for more than 2 years)

4. Separation for more than 2 years (by consent)

5. Separation by at least 5 years (without consent)

Behaviour, statistically the most commonly cited fact, requires petitioners to particularise the behaviour on which they are relying, as it must be of a nature such that the petitioner can no longer be reasonably be expected to live with their spouse. In general it is appropriate to provide at least four or five examples. For a couple who may have agreed to divorce on amicable terms, dredging up the often contentious historical faults of the respondent can easily alter the tenor of proceedings. For obvious reasons, the
need to prove adultery, if it is not admitted, is also highly confrontational. Whilst this can be problematic for the divorcing couple, both the government and lobbyists have also focussed, quite reasonably, on the adverse effect that this kind of confrontational approach may have on children.

In some cases these accusations become more than a bitter pill to swallow for the respondent, who may feel bound to consider actively defending the divorce, however expensive that may be in terms of emotion and costs. The recent and well published Supreme Court ruling in Owens v Owens [2018] UKSC 41 has highlighted that the courts are at the mercy of statute if a party wishes to unilaterally leave a marriage without being able to prove its irretrievable breakdown by proof of one of the facts. The Supreme Court was extremely uneasy when dismissing Mrs Owens’ appeal as it was ordering a marriage to continue despite the fact that one of the parties clearly did not wish to remain married and indeed at the time lived apart. Lord Wilson even went as far as to suggest that parliament ‘may wish to consider whether to replace a law which denies Mrs
Owens any present entitlement to a divorce’.

It should be noted, however, that whilst Mr Owens was successful, in the vast majority of cases this will be a thankless task. Indeed, the Nuffield Foundation in 2018 was unable to cite a single recent example of an individual successfully opposing the grant of a decree (see LJ Wilson p17, Owens v Owens [2018] UKSC 41) barring Mr Owens.

Separation can be a more useful option for divorcing couples as it does not require raising any issues of fault. However, over two years, this fact still requires the consent of the other to be given. When consent is not forthcoming, the petitioner would instead have to wait a full five years from separation. In many cases, waiting two to five years to
commence proceedings that may themselves be lengthy, is simply an unacceptable delay.

The Proposed Reforms

The reforms seek to replace the necessity to prove one of the five facts with a requirement to notify the court that the marriage has irretrievably broken down (our emphasis). This would essentially remove the need to detail any particulars that may further alienate the divorcing couple.

The government also proposes to allow couples, if they wish, to provide notice of the irretrievable break down on a joint basis, thus allowing the parties to approach the process on a collaborative basis from the start.

Importantly, the government will also seek to remove the ability to contest a divorce, stopping the possibility of an Owens v Owens situation. To provide balance, the reforms also seek to introduce a minimum six month time frame from petition to decree absolute to ensure couples have a ‘meaningful period of reflection’. This is further broken
down into an obligatory 20 weeks from petition to decree nisi and a further 6 weeks to decree absolute. It should be noted that the reforms make allowance for the court’s discretion to expedite the process should it be considered necessary.

Whilst the reforms will be a drastic change, they have been met by wide professional and charitable support not least by the Law Society, Resolution, and Relate.

Should I Wait?

The reforms are to be introduced to parliament ‘as soon as parliamentary time will allow’. With Brexit and contingent matters clogging up parliamentary time this is a very unclear schedule. In circumstances in which grounds are easily agreed it may therefore be advisable to go ahead rather than wait. In circumstances in which the grounds are likely
to be highly contentious, it may be worth considering the possibility of delaying. In either event legal advice should be sought as timing can be of critical importance.