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October 31, 2017updated 11 May 2018 4:43pm

No-fault divorce: the case reopens

By Hannah Solel

A new report in favour of introducing no-fault divorce bolsters the widespread support for reform of the law, writes Hannah Solel

Fault has no place in divorce proceedings and the law should be reformed accordingly, a report published this week argues. The Nuffield Foundation report affirms the multi-decade calls of family lawyers and members of the judiciary who have long recognised the need to change the largely fault-based process of attaining a divorce. Among those who attended the launch of the report were Lady Hale, the new President of the Supreme Court.

The report finds that ‘producing evidence of fault can create or exacerbate unnecessary conflict with damaging consequences for children’. It concludes: ‘A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.’

This would require a complete overhaul of divorce law, tantamount to new legislation. The report suggests one or both parties should register that their marriage has broken down irretrievably, and their intention to divorce should be confirmed by one or both parties after a minimum six-month period.

Ayesha Vardag, a high-profile family lawyer and public advocate of introducing no-fault divorce, welcomes the report’s findings. ‘I really feel that all the stars are aligning for us to be able to do some good and make some positive reform,’ says Vardag, who hosted a fringe event on the issue at the Conservative party conference in Manchester.

Vardag notes that ‘the real problem is the political gutlessness of every party that’s ever been asked to address this’ due to a fear of being blamed for tainting the institution of marriage. But this is changing, the lawyer observes. ‘Now, the Labour party has put it [introducing no-fault divorce] in their manifesto, so the Conservatives have no excuse whatsoever,’ adds Vardag.

So the prospect of reform seems more promising than ever. Coincidence or not, the House of Commons Library has just published a research briefing on the arguments for and against introducing no-fault divorce. While research briefings consist of impartial analysis, the fact the library staffers chose to research this topic is perhaps telling. A Commons Library spokesman confirmed that MPs are frequently asked about the prospects for no-fault divorce by constituents.

Within the judiciary, no-fault divorce has been discussed frequently. Indeed, Lady Hale recently reinstated her support for no-fault divorce. At a press conference marking her installation, Spear’s asked Lady Hale how the law might incorporate no-fault divorce. ‘It cannot happen through case law, save to the extent that the current ground for divorce in the Matrimonial Causes Act is open to interpretation,’ Lady Hale noted. ‘It is not often realised and it is part of the problem with the present law that in reality there is already no-fault divorce in the great majority of cases.’

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Baroness Hale, the new President of the Supreme Court. Photograph by @UK Supreme Court/Kevin Leighton

But what about the minority?

Solicitor Joanne Edwards, partner and head of Forsters’ family practice in Mayfair, draws attention to the controversial Owens v Owens case in the Court of Appeal, which for many highlights the urgent need for reform. In the case, Mrs Owens was denied a divorce because the judge did not accept her husband had demonstrated unreasonable behaviour. Edwards, previously chair of Resolution, the national family lawyers’ association which strongly advocates no-fault divorce, tells Spear’s: ‘When the judge decided that Mrs Owens had not established to the court’s satisfaction that the marriage had broken down irretrievably, that was within his powers in the statute. It’s then quite difficult for somebody in Mrs Owens’ position to appeal.’

But appealing she is – to the Supreme Court, no less.

‘There is a limit to the amount of judicial discretion in this area,’ Edwards points out, ‘and they [judges] are straight-jacketed by what the statute says.’

The current law states that the only ground for divorce is that a marriage has ‘irretrievably broken down’ and this must be supported by one (or more) of five facts: adultery, unreasonable behaviour, desertion, two years’ separation with mutual consent, or five years’ separation without mutual consent.

The latest impetus for reform follows proposals several decades ago when Lady Hale, during her time at the Law Commission, proposed legislative provisions for establishing no-fault divorce. These were then discarded.

Time will now tell how Lady Hale, and the Justices she selects to sit alongside her, decide Mrs Owens’ appeal next year. Edwards adds: ‘The Supreme Court may well end up at the same place. So in a nutshell, I think most family lawyers would agree with her [Lady Hale] that only with policy makers intervening and new statutory reform that there’s going to be significant change in this area.’

Not everyone will agree of course, but with such widespread support for divorce law reform, not least at the very highest levels of the judiciary, it would seem that the time has now arrived for this issue to be resolved once and for all.

Hannah Solel is a writer and Researcher at Spear’s

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