Divorce: The Plot Thickens

In August, Newell Legal reported on the developments in UK divorce law that arose from a Supreme Court judgment. In that case, the Supreme Court ruled that the Claimant wife, Mrs Tini Owens, could not divorce her husband. She argued that she wanted to escape her loveless marriage, but was told that she would have to wait until a period of five years had elapsed as he did not consent to the divorce. Mrs Owens will be able to obtain a divorce in 2020. Within that article, Newell Legal indicated that there may be future consideration of a new ‘no-fault’ basis for divorce. On Friday 7th September, some six weeks after the Owens judgment, the UK Government indicated its intention to launch a consultation on introducing no-fault divorces. The consultation is expected to start in the coming months. Currently, the duration of the consultation is unknown.

The current system, as previously pointed out by Newell Legal, is an adversarial one that forces couples to blame one another if they wish to speed up divorce. The intention behind the proposed new ground of divorce is to streamline the slow and confrontational procedures couples face when separating. The Ministry of Justice appear to be taking an approach which would essentially end the right of spouses to contest a divorce. The consultation will examine, amongst other things, how long spouses would need to wait before becoming entitled to a divorce. At the time of writing, there is a suggestion that the minimum period should be six months. This is a significantly shorter amount of time, particularly when considering the unfortunate circumstances of Mrs Tini Owens, as noted above.

By way of a reminder, currently, a couple can only obtain a divorce if they satisfy one of the five grounds in the Matrimonial Causes Act 1973:

  1. Adultery;

  2. Unreasonable Behaviour;

  3. Desertion for a period of two years;

  4. Two years’ separation (with consent); and

  5. Five years’ separation (without consent).

The Law Commission recommended introducing the concept of 'no-fault' divorce in 1990, although this was unsuccessful. A previous attempts was made to introduce no-fault divorce to the legal world in 1996. The amendment would have required spouses to attend "information meetings" to encourage reconciliation. However, following pilot schemes and test runs of the programme, the government decided it was unsustainable. As a result, the amendment was shelved. According to Clive Coleman, the BBC's legal correspondent, many senior judges favour the idea of no-fault divorce. It is apparent that even the Lord Chancellor is amongst those who are sympathetic to the need for reform.

This has been explicitly acknowledged by the Justice Secretary, David Gauke. Mr Gauke has indicated that the current system merely leads to unnecessary antagonistic behaviour. The position is somewhat echoed by the Shadow Justice Secretary, Richard Burgon. However, Mr Burgon has stated that the Conservative party ought to simply proceed with the amendment to divorce law in the UK, as opposed to having a consultation. One could accept the position of Mr Burgon as being correct. This is because a consultation would result in a significant use of taxpayer's money, which could be used elsewhere. Alternatively one could also side with Mr Gauke, particularly when considering whether there should be a legal minimum period of time one must wait, if any, before becoming entitled to obtain a divorce.

The proposed consultation has received a positive reception from various campaign groups and divorce lawyers who have fought for the modernisation of the current system. Among those voicing their praise at the news is Nigel Shepherd, a former Chairman of Resolution, a family law organisation. He acknowledges that this is a landmark moment, as couples have in the past been forced to argue in order to satisfy an outdated legal provision. It should be noted that this can, in turn, lead to long term damage to the relationships between children and their parents. It is estimated that since 1996, approximately 1.7 million people have been assigned blame in order to obtain a divorce. The President of the Law Society, Christina Blacklaws, has echoed this position. Ms Blacklaws has also stressed that it is time to bring the law into the 21st century, to reflect modern society.

It must be stressed that this consultation is merely in its preparatory stages. It has not been given the green light to proceed as of yet. Should the new ground be introduced, it would arguably modernise legislation that has not been changed for approximately 50 years. As one will note, the intention behind this proposed change is to simplify the process and remove the need for blame when couples separate. Whether the consultation proves to be a success remains to be seen, although, it does appear to be taking steps in the right direction.

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