Currently, divorce in England and Wales is a fault-based system governed by the Matrimonial Causes Act 1972
. There is a two-part test which must be satisfied providing firstly, that there has been an irretrievable breakdown in the marriage and secondly, the party going ahead with the divorce called the petitioner must choose to rely on one of five factors as their ground for the divorce:
- Unreasonable behaviour
- Two-year separation with consent, or
- 5-year separation without consent.
As the current law stands, the fault-based system increases hostility between the parties. Adultery and unreasonable behaviour are by far the most commonly used divorce grounds primarily as they do not involve waiting for a period of time. Using these grounds as a route to a quicker divorce can increase tension between the couple as it requires the parties to find fault on their spouse.
The first call for reform of the divorce system started in 1996 with the view that any party should be able to rely the relationship breakdown as their reasoning for divorce rather than finding fault on the other party. The twenty-first century has seen a significant increase in divorces which has prompted the view that the current law is detached from modern day values.
Scotland introduced a no-fault divorce based system in 2006 after they faced similar inconsistencies in the law as those seen in today shown in England and Wales. The new no-fault divorce system has modernised the law to sit in conjunction with modern day societal views.
The recent controversial case of Owens v Owens  EWCA Civ 182 demonstrated the fundamental issue with divorce laws in England and Wales. Mrs Owens was denied her divorce by Sir James Munby in the Court of Appeal on the basis that he did not accept her husband had demonstrated unreasonable behaviour stating that her particulars claiming she felt unloved, isolated and alone were flimsy. The judgement left Mrs Owens with no option but to wait for a total period of 5 years before he could divorce because Mr Owens would not consent to the divorce based on 2 years separation. The decision in Owens juxtaposes marriage and demonstrates the hypocrisy in the law leaving Mrs Owens trapped in her own loveless marriage.
Consistent attempts have been made to introduce a no-fault divorce in England and Wales but the matter was brought back to Parliaments attention in 2018, by Owens. The Supreme Court invited Parliament to replace the existing backdated law as a result of the decision preventing Mrs Owen from being granted her divorce even though her marriage had clearly broken down. Fresh calls for reform were seen after Owens as many argued Mrs Owens was bound in her love-less marriage as a result of the fault-based divorce laws.
The most recent proposal for no fault divorce in 2019 proposed to remove the five grounds for divorce and instead required that there had been an irretrievable breakdown in the marriage. As a result of abolishing the five grounds for divorce, the proposal suggested that either one party or both should inform the Court of their intention to divorce.
A significant change in the proposals saw the ability to contest the petition removed in an attempt to further reduce hostility between the parties. However, the proposals did suggest that either party could still challenge a petition that they felt unjust on the grounds of:
- Validity of marriage
- Fraud or coercion, or
- Procedural compliance.
Currently, the petitioner must wait a minimum of six weeks and a day from the grant of the Decree Nisi to apply for the Decree Absolute finalising the divorce. The new proposals suggested a six month time frame from start to finish. This would have involved a twenty week period from the beginning of the petition to the Decree Nisi and then six weeks until the Decree Absolute. This is a significant reduction within the timeframe for a divorce and one which is unlikely to be achievable considering the movement to regional divorce centres in England and Wales which have a far greater workflow.
Finally, the proposals suggested retaining the ability for the court to stay proceedings where they believe there has been reconciliation between the parties. The proposals upheld the absolute ban of divorce in the first year of marriage in order to preserve the formalities of marriage.
The proposals for reform have gained support from the Government, Legal Practices and Bodies. The Law Society echoed their support for both parties ability to petition to divorce however, they outlining there could be difficult to distinguish between which party is the applicant and the respondent. The Family Mediation Council outlined their support for the only ground of divorce being the irretrievable breakdown of marriage for the purpose of removing hostility and conflict between the parties and any children. CAFCASS
also supported the majority of the proposals emphasising that removing the right to contest the divorce petition would relieve animosity and uncertainty for children.
Where does England and Wales divorce law go from here? Unfortunately, the pressing issue of Brexit in Parliament forced the no-fault divorce bill out of Parliament in 2019. The proposals for a no-fault divorce system outlined yet again a positive change for divorce laws and saw greater support for a new updated system. Although, it is unlikely that the bill for a new legislation to be passed soon, the substantial support seen in Parliament in 2019 will hopefully mean this change into a no-fault divorce based system will be introduced in the near future.
How can Glanvilles help?
For expert advice contact us at your local Glanvilles office and speak to one of our Family and Matrimonial colleagues.