No fault divorces: in line with international trends?
For the past 50 years in England and Wales there has been only one ground for divorce: that the marriage has broken down irretrievably.
In order to evidence this irretrievable breakdown of the marriage, one must rely on one of five supporting ‘facts’, namely ‘adultery’, ‘unreasonable behaviour’, ‘two years separation with consent’, ‘two years desertion’ or ‘five years separation’.
Thus, if a married couple wish to obtain a divorce without waiting two years, they must show that one of them is at fault, either by establishing that their spouse has committed adultery, has deserted them or that their behaviour has been so unreasonable they cannot be expected to remain married to them.
Archaic Divorce Laws in England and Wales
This archaic system of establishing fault has long been condemned by prominent members of the judiciary, lawyers, politicians, family law organisations such as Resolution and relationship charities, who have argued that the use of fault is damaging to couples and often to their children. Critics of the current system have argued for many years that the current system of blame triggers or exacerbates parental conflict and does not protect marriage or deter divorce.
The need to establish blame can often lead to increased hostility between couples, who are already facing potentially one of the most stressful times of their lives and can often result in extensive and acrimonious courtroom battles which may have been otherwise avoided.
Reform of Divorce Laws at last?
Following a campaign spearheaded by Family Lawyers organisation Resolution which showed overwhelming support for no fault divorce and a consultation paper published last autumn which received over 600 responses, Justice Secretary David Gauke has confirmed that the procedure for divorce will now be reformed. Whilst many of the details will need to be ironed out, the proposals for reform will potentially include:
- the “irretrievable breakdown of marriage” as the sole ground for divorce;
- the removal of the five “facts” required to evidence the irretrievable breakdown of marriage and the need to live apart or to provide evidence of misconduct;
- the introduction of a new notification process which can be triggered by one or both parties; and
- the removal of the ability for one spouse to contest the divorce application except in very limited circumstances e.g. where jurisdiction is contested.
Nuffield Foundation report on Divorce
A new report from the Nuffield Foundation has shown that the Ministry of Justice’s proposal to establish a ‘no fault’ divorce is in line with the system in place in several other jurisdictions around the world, including Germany, New Zealand, Australia, Finland, California, Colorado, Spain and Sweden.
This report highlights that there is an international trend away from requiring any ground at all, along with recognition that a divorce must be granted where one of both parties insists that the marriage is over. Interestingly, the report shows that in Spain, Finland and Sweden there are no grounds or evidence which need to be demonstrated in order to obtain a divorce. In Germany, California and Colorado, the petition itself is taken in practice as evidence of the irretrievable breakdown of the marriage.
Where now for the law on Divorce?
So where does this leave the law in England and Wales? Whilst no formal timescales have been established as of yet, it does appear that the government are aware of the need for change as quickly as possible and it is hoped that a bill detailing the reform may be put to MPs as early as May 2019, in line with the new parliamentary year. Watch this space…