6.5 Government proposals
The Ministry of Justice has published its much-anticipated consultation paper on reform of the grounds for divorce in England and Wales under s.1(2) of the Matrimonial Causes Act 1973 (Consultation document) .
This comes after ever growing pressure from campaigners, newspapers and senior judges to change the “unjust” and “outdated” laws that dictate when a couple can and can’t get divorced.
There are lots of changes that could be made to improve divorce law, but the one most archaic element which causes conflict, division and trauma is the need for blame.
The breakdown of a marriage is a difficult time for families. The decision to divorce is often a very painful one. Where children are involved, the effects where there is ongoing conflict, can be profound (Reform of legal requirements for divorce) .
Under current law in England and Wales, couples must either live apart for a substantial period of time before they may divorce, or else they must make allegations about their spouse’s conduct. This is sometimes perceived as showing that the other spouse is “at fault”.
Both routes can cause further stress and upset for the divorcing couple, to the detriment of outcomes for them and any children. There have been wide calls to reform the law to address these concerns, often framed as removing the concept of “fault”.
The government therefore proposes to reform the legal requirements for divorce so that it is consistent with the approach taken in other areas of family law, and to shift the focus from blame and recrimination to support adults better to focus on planning for their own futures and for their children’s. The reformed law should have two objectives: to make sure that the decision to divorce continues to be a considered one, and that spouses have an opportunity to change course to make sure that divorcing couples are not put through legal requirements which do not serve their or society’s interests and which can lead to conflict and accordingly poor outcomes for children
This consultation proposes adjusting what the law requires to bring a legal end to a marriage that has broken down irretrievably. This adjustment includes removing the ability to allege “fault”. This is similar to the process proposed in the Divorce Law Review Bill currently sponsored in the House of Lords by Elizabeth Butler-Sloss, former president of the Family Division.
7 Models of divorce in other Jurisdictions
Scotland: Like England and Wales, Scotland has a mixed system, under which the ground of irretrievable breakdown must be proved by facts, some fault and some no-fault and some was similar to the Matrimonial Causes Act 1973 until the Family Law (Scotland) Act 2006 amended the Divorce (Scotland) Act 1976. The facts are now adultery, behaviour, separation for one year where both parties consent, and separation for two years where they do not.
Republic of Ireland: Under the Family Law (Divorce) Act 1996 divorce is based on no-fault grounds, namely living apart for four years out of the last five, and no prospect of reconciliation.
Spain: Divorce in Spain is straight forward; a three-month bar after the marriage
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6 Divorce practitioners
Many family law experts and very senior judges believe divorce without blame is better way of achieving a resolution and avoiding a court imposed one. Any divorce process is often an emotional rollercoaster for those involved but in a lot of cases, couples are looking to avoid confrontation and dispute. Resolving problems outside the courts, reducing conflict and the burden on the family courts are just some of the reasons why the campaign for ‘no fault’ divorce is gaining a lot of support. Many solicitors indicate the reason for the marriage break-up is genuine and, rather than assigning blame, allow focus on important issues such as division of assets and future care of the children.
Some people find the current system archaic and unrepresentative of 21st century values. This issue is likely to be under the spotlight for some time to come. Here at Harrogate Family Law we are keen to see any changes that make it easier for families to maintain good communication and positive relationships after divorce and ending the blame culture that exists under the current system can only help us towards that goal.
6 “Family Matters” campaign in The Times
On 17 November 2017, the Times newspaper launched a campaign to reform the divorce law in England and Wales. It is not clear what precipitated this campaign, but it may well be a result of a perfect storm of high profile matrimonial finance cases in the press, a private member’s bill being read in Parliament, lobbying by The Marriage Foundation led by former High Court Judge Paul Coleridge, and the campaign already underway by Resolution (supported by the FLBA) for ‘no fault’ divorce, brought into sharp focus by the case of Owens v Owens, which is due to be heard in the Supreme Court in May 2018 (and in which five members of 1KBW are involved).
Will the Times be successful in bringing about a change to laws which are now 44 years old, and despite various calls for reform from professional bodies over the years? Maybe not, especially with a Government so preoccupied by Brexit and without a majority in the House of Commons.
In any event, the reforms sought by The Times are a slightly mixed bag. Some of the reforms called for are not controversial. For example, there is an overwhelming majority of specialist family practitioners (solicitors and barristers) who believe that ‘no fault’ divorce would be ‘a good thing’. The current law only permits a so-called ‘quickie divorce’ (although that is a myth) if there has been adultery or if the Petitioner pleads that it is not reasonable to expect her/him to live with the other spouse anymore because the marriage has irretrievably broken down due to the ‘unreasonable behaviour’ of the other party. The only other options are to be separated for 2 years (with the consent of the other party to a divorce) or for 5 years (if the other party does not consent).
Before ‘behaviour’ petitions were permitted, parties in the early to mid-20th Century who wanted a speedy divorce would concoct a fiction. They would stage a phoney adultery, often in hotels or B;Bs, with the other spouse fully aware and approving of the ‘adultery’ that was taking place.
Latterly, coupes who both want a speedy divorce to have been forced to concoct similar fictions, with the Petitioner pleading the alleged poor behaviour of the other party, even if in fact there was no poor behaviour and the reason for the breakdown of the marriage was simply that the parties did not love each other anymore. As the law currently stands, not loving each other anymore is not a good enough reason to obtain a divorce. Instead spouses concoct behaviour petitions that are as anodyne as possible, in the hope that the court will simply rubber stamp it anyway and the other spouse will not be too offended.
This forces parties into an absurd situation: they must concoct often largely fictitious allegations about the behaviour of their spouse, and the other spouse is forced to accept the allegations – the only alternative being to defend the divorce, pointlessly and at huge cost, especially if they too also want a quick divorce.
To many family lawyers this result was unsurprising. Unfortunately, the Justices’ hands were tied. As Lady Hale remarked, “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.”
Indeed, as the judgment indicated, the Justices’ felt the outcome for Mrs Owens was not at all satisfactory as they dismissed her appeal. They vigorously considered section 1 (2) (b) of the Matrimonial Causes Act 1973 but, found that the law cannot be interpreted in any other way.
This means we are at the end of the road in trying to construe current law into a fair and proper application for today’s society. Clearly, our divorce law was apt for society 50 years ago but cannot be interpreted afresh to be adequate for modern relationships in modern times.
As it stands, our law requires a marriage to be irretrievably broken down and one party to be deemed ‘at fault’ before a divorce can be granted. Family lawyers regularly report having to “beef up” in divorce petitions to satisfy statutory requirements to get divorces off the ground. This simply increases the acrimony between the parties and adds to their distress and heartache.
We need reform and soon. So, what’s the next step?
It is now in the hands of Parliament to change the law and it is hoped that the Supreme Court’s decision will put enough pressure on government to do so. Historically, divorce law reform has not been a priority. In 1996 Parliament passed the Family Law Act 1996 introducing “no-fault” divorce where the specific conduct of one party would not have to be considered. The statute was never implemented however and, regrettably 22 years later, we continue to live with an archaic regime.
Pressure has been building for decades for a system of no-fault divorce. The Law Commission recommended it in 1990 and many senior judges favour it.
The reason? Many believe that when divorcing couples are being torn apart emotionally and financially, and trying to make living arrangements for their children, assigning blame to one party can only exacerbate an already stressful process.
No-fault divorce would have been introduced in a 1996 Act of Parliament requiring spouses to attend “information meetings” to encourage reconciliation, but following pilot schemes, the government decided it was unworkable.
The Ministry of Justice will seek to end the right of spouses to contest a divorce and consult on how long the parties need to wait before becoming entitled to one, suggesting a minimum of six months.
Essentially, the government is proposing a notification system where, after a defined period, if one spouse still maintains the marriage has broken down irretrievably, they become entitled to a divorce.
There will be some who fear such a system will undermine marriage, but many believe it could remove a layer of stress and anxiety from one of life’s most traumatic experiences. A reform in this area of law would afford couples the opportunity to end their marriage without the need to apportion blame, ultimately reducing conflict and hopefully encouraging parties to conduct their separation in an amicable and civil manner.
COPY AND PASTE FRM THE NET
Until 1857, divorce in England was available almost exclusively by act of Parliament or by the Church of England in the ecclesiastical courts (Cretney ; Masson, 1990; Stetson, 1982). The Matrimonial Causes Act 1857 created a Court for Divorce and Matrimonial Causes and gave the court jurisdiction to consider and grant divorces. While the procedure changed, the substantive ground for divorce remained essentially the same: adultery (Cretney ; Masson, 1990). Interestingly, a wife could not rely solely on adultery to seek a divorce; she had to allege some other marital offense as well (Stone, 1990). Despite the change in the locus of decision making from Parliament to the courts, divorce was still very difficult to obtain for those who were not wealthy.
Adultery remained the only legally recognized basis for divorce until the Matrimonial Causes Act 1937 added as additional fault grounds the following: cruelty, desertion for a continuous period of 3 years or more, and “incurable insanity.” Within a short time after enactment of the 1937 Act, it became clear that the fault-based system was unrealistic; an increasing number of divorcing couples were simply colluding and inventing grounds for divorce to fit the statute (Cretney ; Masson, 1990; Stone, 1990). By 1951, a Royal Commission was assembled to consider a reform (Cretney ; Masson, 1990). Members could not agree on what course to take, with one group urging abandonment of fault grounds and a move toward recognizing the idea of irremediable marital breakdown and the other seeking to maintain the status quo (Stone, 1990).
Reform came about in the mid-1960s when two groups considered the divorce law and issued influential recommendations. The Archbishop’s Group, formed by the Archbishop of Canterbury and including clerics and lay members of the Church of England, called for recognition of “irretrievable matrimonial breakdown” (Archbishop’s Group, 1966). The Law Commission, consisting of judges, lawyers, and legal scholars, agreed with the Archbishop’s Group that the time had arrived to allow divorce on faultless grounds (Law Commission, 1966) . The major difference between the two groups was the church group’s preference for a divorce procedure that relied upon extensive participation by judges and the secular group’s reluctance to further burden the judiciary (Glendon, 1989). The recommendations of the two groups ultimately formed the foundation for the Divorce Reform Act 1969.
The English Divorce Reform Act 1969 was a dramatic change and it proved influential in continental Europe and in the United States. With the Act, Parliament did not, however, actually abolish fault grounds for divorce. Section 1(1) of the Divorce Reform Act 1969 declares that, henceforth, the only basis for divorce would be “irretrievable breakdown.” Section 1(2), however, describes the five ways irretrievable breakdown can be proven and three are traditional fault grounds: adultery, desertion, and cruelty.
Liberal though it was, the Divorce Reform Act 1969 was cautious in important ways. Mutual consent divorce was available only after a couple had lived apart for 2 years unless the couple could show exceptional hardship; unilateral no-fault divorce required a 5-year separation unless the petitioner showed hardship or exceptional depravity by the respondent (Glendon, 1987). Even though substantial obstacles remained, many more couples in England and Wales sought divorces after the 1969 Act (Cretney & Masson, 1990). Interestingly, though, most of these divorcing couples (more than two-thirds in 1984) have continued to rely on fault grounds, perhaps because this is the easier route to obtaining a divorce (Glendon, 1989).
The Divorce Reform Act 1969 required judges to inquire into the facts of each divorce petition. However, by the mid-1970s, serious inquests were rarely held in cases of uncontested divorce and it was typical for a divorce to be merely an administrative act performed by a clerk (Cretney & Masson, 1990). Although the law provides English courts with the option of denying a divorce petition (used only by spouses who have been separated for at least 5 years) in cases where divorce would lead to “grave financial or other hardship,” divorces are seldom denied on this ground. This defence is rarely successful because the hardship must be shown to have resulted from the legal divorce itself, above and beyond any hardship resulting from the separation that has inevitably occurred before.
A 1984 amendment to the English divorce law decreased from 3 or 5 years to 1 year the required term of separation and eliminated the exception for hardship (Cretney & Masson, 1990). Thus, divorce is commonly available after only a year’s separation, and, in some fault cases, even less (Glendon, 1989).
The progression to simpler divorce in England and Wales is not without its critics, perhaps because Britain has the highest divorce rate in Western Europe (Glendon, 1989). Freeman (1991a) suggests that, due to pressure from many who believe that liberal English divorce laws are leading to a crumbling of British and Welsh family life, there will likely be a more restrictive divorce law enacted in England in the near future. The Law Commission has recommended that couples be required to wait an extra year for a “period of consideration and reflection.” This period is designed to ensure that the marriage is indeed irreparable. To aid in their deliberation, couples would be encouraged to participate in counselling and mediation services.
There is a compelling case for reform to divorce law, particularly the removal of fault from the process. The Law Commission published comprehensive criticisms of the current law in 1988, and many stakeholders in family law continue to call for no-fault divorce.
Key criticisms are that the use fault increases conflict between the parties and encourages false or exaggerated claims which do not represent the real reason for the breakdown of the marriage. The behaviour fact is particularly criticised for increasing animosity and giving a potentially false sense of why the marriage broke down.
The historical context
The nub of the matter, acknowledged by the judges in each court, is the requirement for someone who wishes to divorce to cite one of five reasons: adultery, desertion, unreasonable behaviour, two years’ separation with the consent of both parties, or five years’ separation without consent. The law does not recognise unhappiness in a marriage as a reason to seek a divorce and, as it stands, only allows a judge to grant a divorce if, on the balance of probabilities “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. In turn, this can only be established by applying the objective test of what would a “hypothetical, reasonable observer make of the allegations”? In response, Mrs Owens argued that a subjective test of how her husband’s cumulative behaviour impacted on her should be applied. The Court was sufficiently sympathetic to her argument that it allowed an appeal to the Supreme Court – which found its hands similarly tied by legislation that, when put the test, was found wanting.
Cretney, S., & Mason, J.M (1990), Principles of Family law (5th.ed.) London Sweet & Maxwell
Stone, L. (1990), The road to divorce, Oxford University Press