Posted by familylaw on 11th February 2019
Last updated 21st February 2019

Last week the Justice Secretary, David Gauke, announced that legal reforms would be put to MPs in an attempt to end the “blame game” in divorce proceedings in England and Wales. This announcement follows years of campaigning by family lawyers and the wider public.

Under the current law, if someone wishes to divorce their spouse or civil-partner, they must demonstrate that the marriage has irretrievably broken down, by relying on one of five “facts”;

  1. Adultery (this fact cannot be relied upon for same sex couples due to the specific definition of adultery);
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years of separation (consent required of their spouse or civil partner);
  5. Five years of separation (no consent of the other party is required).

The most common facts used are adultery and unreasonable behaviour – partly because these are the only two facts which would enable the parties to divorce without having to wait for years before proceedings can be initiated.

The media spotlight was shone on this issue in 2016 when Tini Owens was denied a divorce after she sought to rely on allegations of her husband’s unreasonable behaviour. The Judge who dealt with the case in the first instance, HHJ Robin Tolson QC, considered the examples that she put before the court and concluded that although the marriage had broken down irretrievably, she had not demonstrated that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him, taking into account the whole of the circumstances and the character and the personality of the parties. Mrs Owens appealed the decision to the Court of Appeal, who refused her appeal.  She subsequently appealed that refusal to the Supreme Court, who also refused her appeal.  Both courts, in considering her appeal, acknowledged the uneasiness of the situation (and Lord Wilson went as far as to say that “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances”), but held that the law had been correctly and properly applied.  Mrs Owens remains married to Mr Owens until 2020, when the fact of 5 years separation can be relied upon.

There has been much public criticism of the decision of HHJ Tolson QC, and the calls for reform of the law have intensified. It is important to note that it is the responsibility of the judiciary to apply the laws enacted by parliament. If changes to the law are required, then that is a matter for parliament alone.

It is clear to most that it is archaic to keep people legally, financially, and emotionally tied to each other when one party to the relationship wants to be released.  Mr Gauke’s announcement offers some hope that parliament will respond to the calls for reform.  Although Mr Gauke indicated that reforms would be put to MPs “within months”, there is undoubtedly still some way to go before people will be able to petition under any new laws.

It will be interesting to see how the long awaited “no fault divorce” will be achieved and whether it will deliver the outcome that so many people have campaigned for, for so long. This is not the first time that reform of the current divorce laws has been undertaken.  In the 1990s, there was an attempt to introduce a no fault divorce, but due to the complexity of its implementation, it was never achieved. Hopefully the new reforms, prompted by the decision of HHJ Tolson QC, will succeed where the previous reforms failed.

At The Family Law Company, we are renowned for our non-adversarial approach and we welcome the concept of “no fault divorce”.  If you are considering divorce, please contact our divorce & finance team on 01752 674999 or 01392 421777.  We offer a free half hour to help you consider your options.

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