Are England and Wales close to implementing a no fault divorce system?
Our Partner Jonathan Starck, actively challenged Her Majesty’s Government on what measures are being taken to amend outdated legislation, before the case of Owens v Owens began. In recognition of the cultural demand to change the current divorce system to a no fault divorce system, Jonathan asked Lord Pendry to submit the following written parliamentary question on his behalf, which, on the 13th February 2017, was answered by Lord Keen of Elie:
To ask Her Majesty’s Government whether they have any plans to review the fault-based divorce system. (HL5103)
Tabled on: 30 January 2017
Lord Keen of Elie:
The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.
Date and time of answer: 13 Feb 2017 at 16:38.
How will a no fault divorce system affect the current procedure?
Following the landmark ruling in Owens v Owens in May 2018, the Supreme Court confirmed that at present, a married couple cannot divorce in England and Wales without placing ‘fault’ on the other party.
Over the past few years, the movement to update this system, to a no fault divorce system has gained rapid momentum, with prominent figures such as Sir James Munby, former President of the Family Division of the High Court, openly stating that the existing law is “very badly in need of reform” and organisations such as Resolution, of which the head of the Family Department at Starck Uberoi Solicitors is a member, launching campaigns to implement a no fault divorce system.
What is the current procedure?
Following the unfortunate breakdown of a marriage, whichever party makes the application for a divorce must place fault on the other party and choose from one of the following grounds on the divorce petition: adultery; desertion; unreasonable behaviour; separation of 2 years (with consent); or separation of 5 years (without consent).
Regrettably, this means that in the absence of waiting for at least two years after the breakdown of the marriage, the petitioning party will have to establish patterns of behaviour from the other person upon which they claim that the marriage has broken down irretrievably. This often causes ‘unnecessary’ bad feeling within proceedings, as from the offset, the current legislation creates a confrontational situation, the no fault divorce approach aims to relieve the current ‘bad feelings’ that are often associated with divorce proceedings. Within the Resolution campaign for a ‘no fault divorce’ option called, ‘end the blame game’, they note that “the legal requirement to assign blame makes it harder for couples to reach an amicable agreement.”
How the case of Owens v Owens is important to the no fault divorce movement?
Mr and Mrs Owens separated in 2015. After Mrs Owens lodged a petition for a divorce, Mr Owens defended the petition (which is a rare occurrence), claiming that he wished to reconcile and that the marriage had been successful. After failing to satisfy the evidential basis for ‘unreasonable behaviour’, Mrs Owens’ divorce petition was rejected on the basis that current legislation could not permit a divorce without the apportionment of blame. Following the appeals up to the Supreme Court, the case garnered lots of media attention with news articles calling the process “demeaning and painful” and many argued that the current system ‘traps’ an individual into marriage and this contradicted the reforms that were intended when the Matrimonial Causes Act 1973 were introduced. This case acted as a catalyst in the creation of the no fault divorce movement.