No-Fault Divorce: On its Way?
The government has launched a consultation on introducing ‘no-fault divorces’, which would allow couples to apply for divorce where neither party is blamed for the breakdown of the marriage.
The government is now canvassing the public for their views on the reform, and this consultation will close on 10 December 2018. The consultation paper can be found here.
The current position, under the Matrimonial Causes Act 1973, is that anyone seeking a divorce must prove their partner is at fault through adultery, desertion or unreasonable behaviour, or, alternatively, if both parties consent, they can part after two years of separation. However, if one party does not consent to the split, they must prove they have been living apart for five years.
This move would allow for the process to be less acrimonious and confrontational, and has been supported by a number of family law professionals. The government’s own House of Commons briefing states that “both [current] routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children”. No-fault divorces will instead “shift the focus from blame and recrimination to support adults better to focus on making arrangements for their own futures and for their children's.”
This issue has been prompted by the recent Supreme Court case of Owens v Owens. In the case, Mrs Owens had been living apart from her husband for over two years, but, because he did not consent, she could not divorce him until they had lived separately for five years, even though a judge had ruled her marriage had broken down.
President of the Supreme Court, Lady Hale, was sympathetic to Mrs Owens, saying that she found the case “very troubling”, but said “‘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”.
Justice Secretary David Gauke appears to have answered the Supreme Court’s call.