An opinion on why the current law on divorce in England and Wales should be amended

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In 2018, the number of divorce petitions granted was 90,871 divorces for heterosexual couples. This was the lowest number of divorces in England and Wales since 1971 and a sharp decrease by 10.6% in 2017.[1] Although the number of divorces hit an all-time low after many decades, there have been calls from the public and the judiciary to reform the current law on divorce.

The current law on divorce as per s.1(1) Matrimonial Causes Act 1973 (MCA 1973) purports that the sole ground for divorce is the irretrievable breakdown of marriage. s.1(2) MCA 1973 articulates that the breakdown of the marriage must be proven with at least one of the five factors mentioned. Three of these five facts are ‘fault-based’ whilst the other two are ‘non-fault based’. Subsection (a) provides that the respondent must have committed adultery and the petitioner finds it intolerable to live with them, adultery is a fault-based fact. It is stated in subsection (b) that the respondent has behaved in such a manner that the petitioner cannot be reasonably expected to live with them, this is also a fault-based fact. The last fault-based fact is mentioned in subsection (c) whereby the respondent had the intention to desert the petitioner and had done so for a continuous period of two years. The next subsection (d) notes that provided there is consent a couple can be separate for a period of two years before filing for a divorce, this is a non-fault based divorce. The last subsection (e) states that one party can file for a divorce after 5 years of separation without consent required.

The main call for reforms on divorce law stems from the fact that one cannot obtain an ‘immediate’ divorce if their facts are not fault-based. Rather they have to wait for either 2 or 5 years to obtain the decree. Furthermore, it was noted by the Office for National Statistics (ONS) in 2017 that 58% of divorces were proven on fault-based facts whilst 42% were based on separation.[2] The Nuffield Foundation published a report in October 2017 titled, “Finding Fault? Divorce Law and Practice in England and Wales” which noted that for fault-based divorces, only 29% of the respondents said the reason for the breakdown of the relationship matched the fact provided whilst 65% of the petitioners said the reason closely matched the fact. From this statistic it can be seen that there is a vacuole in the law as a lot of times the facts provided do not match the reason for the breakdown of the marriage.[3] This major flaw in the law was highlighted in the case of Owens v Owens[4].

The case of Owens v Owens follows an elderly lady, Mrs. Owens who sought to get a divorce from her husband. Her husband, Mr. Owens went on to contest the divorce and thus, the case was heard before both the Court of Appeal (CoA) as well as the Supreme Court (UKSC). Mrs. Owens here had filed for a divorce as per s.1(1) MCA 1973 with her marriage being irretrievably broken down as the sole ground and cited s.1(2)(b) MCA 1973, the fact that she could not be reasonably be expected to live with Mr. Owens as he had behaved in such a way. She had cited multiple reasons as to why his behaviour had left her feeling unhappy, upset and embarrassed and as result over the year she had grown apart from him. Out of all her reasons, in reference to her third and fourth allegations, that Mr. Owens has been moody and argumentative as well as had disparaged her in front of others, Mrs. Owens had provided 27 examples in which these instances occurred as she had them jotted down in her diary.

When the case was being heard by the Central Family Court in 2016, the judge noted that while he found that the marriage had broken down, he could not come to the conclusion of granting a decree nisi as the petition did not satisfy the behaviour facts requirement as it was drafted in “anodyne terms”. He went on to note that Mrs. Owens went to “significantly” exaggerate the context and the seriousness of Mr. Owens behaviour and as such the examples of the alleged behaviour was at best “flimsy”.

The CoA went on to dismiss Mrs. Owens appeal to which they did “with no enthusiasm whatsoever”. They mentioned that it is not possible to overturn a decision which rightly applied the law despite the fact that they had agreed that the marriage had broken down. The UKSC unanimously went on to agree with the previous decisions and noted that they too had to quash Mrs. Owens’ appeal as it did not satisfy the behaviour facts. Lord Wilson and Lady Hale both cited that while the decision is “troubling” it is not for the courts to change the law placed by Parliament but rather apply it. They both had asked Parliament to “reconsider” the law on divorce which prevents people like Mrs. Owens from getting a divorce despite having shown that the marriage has broken down due to not being able to satisfy any one of the facts.

Parliament has attempted to reconcile the gap in the law of divorce. This was seen in Part 2 of the Family Law Act 1996 (FLA 1996). Whereby there was a provision which included “no-fault based” divorce, it’s aim was to reduce the bitterness and the damaging impact of divorce proceedings between the parties involved. This process was said to include couples attending “information meetings” which is said to encourage reconciliation before opting for divorce. In these sessions, marriage counselling as well as mediation, welfare of children and division of financial assets were to be discussed. A pilot scheme was carried out between 1997 to 1999 and the then Lord Chancellor, Lord Irvine of Lairg found the results to be disappointing as the marriages had passed past the stage of reconciliation and thus, the information meetings were redundant. Ergo, the relevant sections of Part 2 of the Act were repealed as they were deemed to be “unworkable”.[5]

The decision in the case of Owens v Owens sparked the discussion on reforming the law on divorce once again in Parliament. Baroness Butler-Sloss introduced the Lords Private Member’s Bill in July 2018 which is required to have the law relating to divorce and judicial separation reviewed by the Lord Chancellor.[6] This Bill had included research from the Nuffield Foundation as to why there should be reforms on divorce law. Firstly, and most importantly is that the reason for the petition of the divorce often does not match with the facts provided as explained above. Secondly, the use of fault-based divorce can trigger and exacerbate more conflict between the couples and this could result with a negative on their children. 62% petitioners and 78% respondents noted that the use of fault had made their divorce a lot more bitter and that when it came to family proceedings in relation to their children and financial obligations, 31% of the fault-respondents said it was harder to sort out.[7]

Thirdly, it was also noted that divorce law in England and Wales was outdated and not in line with practises followed by most European countries as well as North America. Lastly, probably the most important point emphasised by the Nuffield research was that the use of fault-based facts does not deter divorces nor does it protect marriages just because some may have to think of a reason, a fault before getting a divorce. In fact, they had noted that there was already divorce by consent or ‘on demand’ as petitioners have found faults to argue for a divorce which makes the proceeding a lot more painful and destructive than it has to be.[8] This current system evidentially provides no benefits to either party to the proceedings and thus it can be stated that the law should be reformed so it does not cause more harm than is necessary to the parties.

The Bill had highlighted the shortcomings of the law as well as included the recommended reform as suggested by the Nuffield Foundation. The reform noted stated that the sole ground for divorce would remain to be the irretrievable breakdown of marriage but it would no longer have to be supported with any of the five facts. Rather it would work on a ‘notification system’ whereby either party or both (joint application) would register that the marriage has irretrievably broken down and a minimum period of six months would be given for reconciliation. This new divorce procedure would also retain the two-stage decree process as it would allow parties to have control and pull back their decision if they change their minds at any time.[9]

The Coalition for Marriage is against the introduction of no-fault divorce as they believe it undermines the principles of marriage and reduces its status to one of a tenancy contract as they purport that the marriage can be dissolved at minimal notice. They also note that the introduction of no-fault divorce could account for the loss of an extra 10,000 marriages. MP Sir Edward noted that no-fault divorce would increase the number of divorces as he drew inference from Canada’s introduction of no-fault divorces in 1968 whereby the number of cases increased sixfold in two years after a century of stable divorce rates. However, drawing an inference from Scotland, where no-fault divorce is an option to parties, in 2015 there was only 6% for no fault divorce where in England and Wales in 2015, there were 60% of divorces granted based on fault facts.[10]

In conclusion, it is noted that divorce law in the U.K. should be reformed to accommodate the current times and that it should not be punishing parties by having them prove fault-based facts for a quicker divorce which could in turn lead to hostility and bitterness between the parties. As mentioned by Justice Secretary David Gauke, while the institution of marriage will always be upheld, it is not right that our outdated laws creates or increases the conflict between divorcing couples.[11]

Written by,  

Aishwarya Nair

Student Intern

 

 

 

[1]The Office of National Statistics, “Divorces in England and Wales: 2018” < https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2018 > accessed 18th December 2020

[2] ibid

[3] L Trinder and others, “Finding Fault? Divorce Law and Practice in England and Wales” (2017) Nuffield Foundation, 3.

[4] [2018] UKSC 41

[5] House of Commons Library, “No-fault divorce” [2019], Number 01409, 13

[6] House of Commons Library, “Common law marriage and cohabitation” [2019], Number 03372, 23

[7] L Trinder and others, “Finding Fault? Divorce Law and Practice in England and Wales” (2017) Nuffield Foundation, 6.

[8] House of Commons Library, “No-fault divorce” [2019], Number 01409, 16

[9] House of Commons Library, “No-fault divorce” [2019], Number 01409, 17-20

[10] House of Commons Library, “Common law marriage and cohabitation” [2019], Number 03372, 26-27.

[11] The Guardian, “No-fault divorce law coming ‘as soon as parliamentary time allows’” < https://www.theguardian.com/law/2019/apr/09/no-fault-divorce-law-coming-as-soon-as-parliamentary-time-allows > accessed 23rd December 2020

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