The Government is now recognising the need for new laws on divorce to catch up with the 21st century, writes Nicholas Fairbank
Major changes to divorce law in England and Wales are hopefully on the horizon as a Government consultation into ‘no-fault’ divorce ended in early December 2018. Though the consultation focuses on only a small, particular aspect of law, the change it could have on the lives and wellbeing of divorcing couples and their families cannot be understated and this potential change is seen as a long time coming by family lawyers in stopping the blame-game between separating couples.
Highly publicised Supreme Court divorce cases have placed the need for reforms in the public eye. For example, the need for more certainty in England and Wales on a maintenance cut-off date following a divorce was highlighted last year in Mills v Mills.
More recently the Supreme Court ruled that Tini Owens, a 68-year-old woman, must stay married to her husband due to a lack of ‘unreasonable behaviour’ from him. Despite this, the judges acknowledged that the level of conflict in a defended divorce suit will often tend to suggest by itself that the marriage has broken down and recognised that their decision could lead to ‘uneasy feelings’ among members of the public, remembering that their role as judges is to ‘interpret and apply the law that Parliament has given us’.
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These cases and their related publicity have therefore put more pressure on Parliament to modernise divorce laws. The consultation argues the case for the removal of the necessity to justify and back up in fact the ‘fault’ or ‘unreasonable behaviour’ that has led to the irretrievable breakdown of a marriage.
Current laws mean that a divorce without ‘fault’ can only be agreed if the couple have lived apart for two years if both consent. When compared to Scotland, whose laws provide the opportunity for couples to divorce by consent after having been separated for one year, it comes as no surprise that English divorce laws are finally under scrutiny.
Currently in divorce proceedings, couples must prove their partner’s ‘fault’ in order to secure the divorce if they’ve not been living apart for two years even if both consent to the divorce. Arguably the law therefore encourages couples to place blame on each other for ‘unreasonable behaviour’ and the emotional turmoil that it has caused them. Divorces are already turbulent and emotional times for separating couples, and pitting partners against each other by encouraging them to relive often upsetting experiences only serves to exacerbate this. Often this process of dragging up the past and blaming one another can cause ongoing conflict that impacts the lives and wellbeing of any children that the couple might have.
With the consultation’s given title of ‘Reducing Family Conflict – Reform of the Legal Requirements for Divorce’, the intentions of the report are clear; minimising conflict between separating partners, and in turn the impact this has on the wellbeing of their children, is at the core of the recommendations made in the consultation. The proposed reforms ultimately focus on looking to the future and ensuring the wellbeing of both partners as opposed to a focus on reliving uncomfortable experiences of the past.
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Of course the counter-argument is that making divorce too easy undermines the sanctity and seriousness of marriage, and therein lies the public policy issue.
It is refreshing to see that the consultation is looking even further than no-fault divorce in its suggestions: the proposals call for the removal of a partner’s right to contest to a divorce, meaning that legal proceedings cannot be used to control and coerce a partner wishing to divorce. Other proposed changes include reducing the length of time a couple must wait before divorcing to a minimum of six months. With Alternative Dispute Resolution on the rise to mitigate the impact of picking up the pieces after separation, it is no surprise that the Government are now recognising a need for the law on divorce itself to catch up.
Many will be looking forward to 8th March, when the response to this consultation is due to be published. Certainly family lawyers will be waiting with bated breath to see if the antiquated laws we still have in England today will finally be modernised for a no-fault divorce in the 21st century.
Nicholas Fairbank, Barrister at 4PB.
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