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Charlotte Cooper
Charlotte Cooper
28 Feb 2019

Reform of UK Divorce Law – “No fault” divorces to be introduced

Family Law

Going through a divorce is often a very stressful and upsetting time in a person’s life. This is often exacerbated by the restrictions imposed by current UK Divorce Law which requires one spouse to “blame” the other should they wish to divorce within the first two years of separating. At present, the Matrimonial Causes Act 1973 (MCA) will only allow a person to obtain a divorce if they are able to show that their marriage has irretrievably broken down. This can be achieved by proving one of five facts:

  • Their spouse has committed adultery
  • Their spouse has behaved unreasonably
  • Their spouse has deserted them for at least 2 years
  • They have been separated for at least 2 years (and their spouse consents to a divorce)
  • They have been separated for at least 5 years (no consent required)

Understandably, once a person has taken the decision that they wish to end their marriage, they are not always prepared to wait for a period of 2 years before they can formalise this through divorce. This then leaves them in a difficult situation where they are forced to “blame” their spouse for the breakdown of the marriage when, more often than not, it is simply the case that both spouses are no longer happy in the marriage. This requirement to place blame often leads to unnecessary acrimony between the divorcing spouses where, in reality, there need not be any.

The highly reported case of Owens v Owens [2017] highlighted the fundamental flaws in UK Divorce Law. In this case, Mrs Owens sought a divorce from her husband on the basis of his unreasonable behaviour. In accordance with standard good practice guidelines, Mrs Owens’ divorce lawyer drafted fairly minor allegations of Mr Owens’ behaviour in order for the petition to proceed. Unfortunately for Mrs Owens, Mr Owens chose to defend her petition and she was unable to proceed.

Mrs Owens therefore amended her petition to include more robust examples of his “unreasonable behaviour” which were again defended. Upon consideration of her case in the Court of Appeal, Sir James Munby ruled that Mrs Owens’ appeal should be dismissed and determined that the lower court had correctly applied the law.

Mrs Owens subsequently appealed this decision within the Supreme Court in July 2018 and again her appeal was denied. Lady Hale commented at that time that “…It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us.

As a result, Mrs Owens is now faced with remaining married to Mr Owens until such time as 5 years has passed since they separated.

Following this decision, it was made clear that reform was required in relation to UK Divorce Law. In September 2018, the Government announced its intention to reform the law surrounding divorce to introduce a “no-fault” divorce. This consultation was closed in December 2018 and Justice Secretary, David Gauke confirmed that this was met with widespread support from Family Law practitioners as well as Resolution, the national association for Family Lawyers.

In February 2019, Mr Gauke made an announcement that it is his intention to bring in legislation enacting a reform of the current law in the next session of Parliament. Such a reform is anticipated to remove the need for separating couples to wait for a period of at least 2 years or allocate blame upon the breakdown of their marriage.

Although the finer details of the upcoming reform are yet to be confirmed, it is hoped that these changes will ensure that unhappy spouses are able to choose to end their marriage in more amicable circumstances and avoid the need for a “messy divorce”. This will also place the UK in line with other jurisdictions (such as the USA) where couples are able to apply for divorce on the basis of irreconcilable differences.

Our team of experts at Ellis Jones Solicitors can provide you with advice and assistance in connection with any aspect arising from your separation or divorce. Should you require any advice or assistance, please contact our Family Team on 01202 636223 or by e-mail to family@ellisjones.co.uk.

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Charlotte Cooper
Charlotte Cooper