Are we a step closer to no fault divorce?
On 7th September, Buzzfeed exclusively revealed that the justice secretary David Gauke is set to announce a consultation on the implementation of no-fault divorce. This would overhaul the current so-called ‘blame game’ system that has come under increasing scrutiny and criticism since the highly publicised Supreme Court judgment in Owens v Owens in July this year.
What is the Current Law?
The current law governing the criteria for divorce in England and Wales can be found in Section 1 of the Matrimonial Causes Act 1979.
In order for a court to grant a couple a divorce, a petition for divorce must be presented to the court by either party to the marriage, stating that the marriage has broken down irretrievably. In order for a court to hold that the marriage has so broken down the petitioner for the divorce must satisfy the court that one or more of the following five criteria have been established:
That the respondent (the other party) has committed adultery and the petitioner finds it intolerable to live with the respondent;
That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petitioner;
That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petitioner and the respondent consents to a decree being pronounced; or
That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
The most recent statistics on divorce released by the Office of National Statistics were in 2016. These stats revealed that of the 106,959 divorces that year, 36% of husbands and 51% of wives petitioning for divorce did so on the basis of ground 2; namely that their spouse had acted in such a manner that they could no longer be expected to live with them. This ground has been the most common ground cited for divorce by petitioning Husbands since 2006.
There has been one previous attempt to establish no-fault divorce, back in 1996. The Family Law Act, of the same year, provided that as long as the couple attended compulsory information meetings there was no need to establish any of the criteria in s.1 Matrimonial Causes Act 1979. However this part of that statute was never implemented and disappeared from the statute book four years ago.
Why is No Fault Divorce Necessary?
It has been said, with increasing veracity, that the current law, which is fast approaching its 40th year, is outdated and far from maintaining pace with society’s fluid and fast changing views.
Critics of the current system say that forcing a petitioner to make allegations such as unreasonable behaviour and/or adultery causes unnecessary animosity between the parties, raising tensions and entrenching their positions, and it can also be highly damaging to any children that find themselves caught in the cross-fire. The Law Society president Christina Blacklaws has said that: ‘making couples attribute fault in order to end their marriage can escalate the differences between them in an already charged situation. It’s time to bring the law into the 21st century to reflect the society we live in and we look forward to working with government to ensure the reforms are fit for purpose.’
The main opposition to no-fault divorce making its way onto the statute book are those from religious and traditionalist groups. They fear that it will allow for a ‘quickie’ escape from marriage, a commitment they see as both significant and life-long. There is a fear that allowing couples to divorce without having to specify the reasons for the breakdown in their marriage will lead to a spike in divorces, undermining the sanctity of marriage as an institution. It is difficult to predict whether their fears would be realised should no-fault divorce be implemented, but the same system has been reported to have actually resulted in a decrease in the number of annual divorces in countries where it is currently deployed, such as the US, the Netherlands and Spain.
Further, as reported by the Independent as far back as 2015, many couples are forced into lying or exaggerating examples of behaviour or adultery within their divorce petitions in order to ensure that the courts will grant them the divorce that they seek. A divorce petition is a legal document and lying on it can be considered to be contempt of court, a criminal offence that carries very real and hefty consequences. Implementing no-fault divorce will alleviate the need for couples to take this substantial risk during the process of their separation. Sir Paul Coleridge, current chairman of the Marriage Foundation and a former family high court judge, has said, ‘this is a development that must be resoundingly welcomed by all of us who know the current divorce law is a fake fault system, which drives people to commit perjury on a wholesale basis if they are not prepared to wait to divorce for two years or longer’.’
A final consideration should be given to the potential cost savings that may result from the implementation of no-fault divorce. Currently court fees are fixed at £550 for filing a divorce petition at court. However, complications in establishing the grounds for divorce, or more rarely where one party contests that the divorce petition should be granted at all; such as in the Owens case, can lead to greater costs being incurred in an effort to resolve matters. No-fault divorce would presumably mean that the petitioner would only be required to pay the one off court fee.
The opinions reflected as part of this ongoing debate are a result of individual opinions and beliefs, and whilst it seems that parliament are beginning to take the initial strides towards ending the ‘blame game’ it remains to be seen if the system will be implemented.