Current Divorce Legislation does not allow for no-fault divorce meaning this outdated law can trap men and women in unhappy marriages against their will unless they want to play ‘the blame game’. Many campaigners and family law practitioners believe the laws surrounding divorce should be changed, to allow couples to separate without having to apportion blame on a legal document, and without having to prove they’ve been separated for two years. The debate about removing fault from divorce is long standing and there are many calls for reform.
Current divorce law in England and Wales is governed by the Matrimonial Causes Act 1973. This Act states that “a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.” In order to satisfy the court that marriage has broken down irretrievably, the petitioner must satisfy the court of one or more of the following facts:
· that the respondent 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 petition;
· that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (referred to as “two years’ separation”) and the respondent consents to a decree being granted;
· 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 (referred to as “five years’ separation”).
On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
If the court is satisfied on the evidence of any such fact as is mentioned above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5, grant a decree of divorce.
Section 5 provides that “the respondent to a petition for divorce in which the petitioner alleges five years’ separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.” If of this opinion, the Court shall dismiss the petition.
Divorce without blame was provided for in the Family Law Act 1996 but never enacted.
As I have already mentioned above, at the moment, the only ground for divorce is that the marriage has broken down irretrievably. This can be proved by satisfying the court of one or more of the above facts but it is not possible for a couple to get a divorce without blame unless they have been separated for at least two years. For many, waiting two years to sort out their finances rules out this option. This means that they must record details either of their partner’s adultery or their unreasonable behaviour in order to proceed with the divorce, making an already difficult and distressing process even harder. This seems particularly pointless given that, in most cases, the reasons for divorce make no difference to any financial settlement or children arrangements – they are simply to allow the divorce to proceed to the next stage.
This often creates conflict and makes reaching a mutually acceptable agreement much more difficult.
In addition to this, it can often cause family law practitioners, like myself, and our client’s frustration. A poll conducted by Resolution, last year, showed that more than a quarter of divorcing couples have made up what they put on the petition, simply to get around this requirement.
Removing blame from divorce will make it easier for people to manage their separation with as little conflict and stress as possible and reduce the likelihood that they will end up in court.
Owens – v – Owens
The recent judgment in the Owens – v – Owens case is a situation that underlines the need for no fault divorce. On 24th March 2017, the Court of Appeal dismissed Mrs. Owens’ appeal in the defended divorce case, effectively saying that she must remain married to her husband. Nigel Shepherd, the national chair of Resolution has said, “It’s simply wrong in this day and age that someone should be forced to stay in a loveless marriage because the behaviour in the divorce petition wasn’t deemed ‘unreasonable’ enough”.
The court of first instance dismissed Mrs. Owens’ petition, on the basis that she had failed to prove, that her husband “has behaved in such a way that [she] cannot reasonably be expected to live with [him].”
The question for the Court of Appeal was whether, Mrs. Owens could establish that in coming to this decision the judge was “wrong” – in which case it could interfere.
Mrs. Owens’ petition set out the statement of case as follows:
“1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.
2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.
3 The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent’s behaviour towards her as well as in front of family and friends.
5 As a result of the Respondent’s behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date.”
The husband filed his acknowledgment of service, answering “Yes” to the question “Do you intend to defend the case?”. He subsequently filed his answer, indicating his wish to defend and denying that the marriage had irretrievably broken down.
Mrs. Owens amended her petition to provide further particulars of her statement of case and the husband filed an amended answer responding to each of these allegations. Thereafter, the case was listed at the Central Family Court as a defended suit and came on for hearing on 15th January 2016 before His Honour Judge Tolson QC where Mrs. Owens’ petition was dismissed.
Mrs. Owens’ appellant’s notice was later issued and Sir James Munby, President of the Family Division granted permission to appeal. The appeal came on for hearing on 14th February 2017 and was dismissed on 24thMarch 2017.
In the judgment, the President of the Family Division stated that, “What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? This being the law, I respectfully agree with the point made by my Lady, Hallett LJ, during the course of argument before us, that if the marriage is unhappy a particular piece of ‘conduct’ may have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage is happy. As my Lady put it, and I agree, what may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage.”
However, as the President of the Family Division rightly asks in the judgment, “ought the decision whether or not a marriage should be dissolved to be one for the parties which the State is not in a position to question?”
The President of the Family Division highlights “The challenge for the divorce lawyer is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne it may be rejected by the court whereas if it is not anodyne enough the respondent may refuse to cooperate. Since the former risk is probably very low in practice (and if it materialises the remedy is simply an amendment sufficiently ‘beefing up’ the petition as to satisfy the court: for an example see X v X (Y and Z intervening)  1 FLR 508, paras 17-18), many petitions are anodyne in the extreme. The petition in present case is a good example; I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court.”
The President of the Family Division also summaries the stark reality of the situation that Mrs. Owens now finds herself in, although “it may be of little consolation to her”, as follows, “she is not totally without remedy under the present law. If she waits until February 2020, assuming that she and her husband are still alive, she will, seemingly, be able to petition in accordance with section 1(2)(e) of the Act. Of course, the husband may seek to dispute that there has been five years’ continuous separation or to defend the petition in accordance with section 5(2) on the footing that the dissolution of the marriage would result in “grave hardship” . . . It is also possible that her husband may eventually consent to a divorce on the grounds of two years’ separation in accordance with section 1(2)(d). But, unless she can bring herself within the “no fault” provisions of subsections 1(2)(d) and (e) she must remain trapped in her loveless marriage. As I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
Resolution represent 6,500 family justice professionals. No fault divorce is a major part of their Manifesto for Family Law. However, Resolution is not alone in calling for change. No fault divorce has received increasing levels of support from the public and leading members of the family law community, including, the President of the Family Law Division. Many other countries around the world – including Australia, the United States, and Spain – allow for divorce without blame.
Resolution proposes a new divorce procedure, where one or both parties can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.
Resolution argue that divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both parties on a level footing.
In my experience, clients find divorce difficult enough. The legal requirement to assign blame makes it harder for couples to reach an amicable agreement.
It also makes it harder for family law practitioners, like myself, to help clients resolve issues in a constructive way.
People should not have to play the blame game to bring their relationships to a dignified conclusion and move on with their lives. A civilised society deserves a civilised divorce process.
Written by: Sam John
Sam is a solicitor at Wendy Hopkins Family Law Practice
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