Divorce Law overhaul: the end of the blaming culture?
The law at the moment
In England and Wales, the laws currently governing divorce are over 50 years old. In order to qualify for a divorce, one spouse must either blame the other for the breakdown of the marriage claiming adultery or unreasonable behaviour, or they must spend a minimum of two years separated. If the couple do not want to wait for the two year period of separation to pass, they will be forced to apportion the blame – even if they both mutually agree that the marriage is over.
Instead of encouraging amicable divorces, this often exacerbates conflict, and thus reaching an acceptable agreement – and avoiding the costs and distress of a court process – is made incredibly difficult, or even impossible.
Under the current laws, it is possible for a respondent spouse to contest a divorce by providing evidence to the contrary, either that they have not committed adultery or have not exhibited unreasonable behaviour. Though, in reality, contesting a divorce petition happens very rarely, it can be used as a method for abusers to continue coercive and controlling behaviour. Clearly a relationship or marriage cannot be salvaged just by providing evidence to invalidate the petitioning partner’s decision that the marriage is over, so it has been proposed that this law is removed.
There have been a number of cases in the past few years, most notably Owens and Owens (2018), which have highlighted the problems with the current divorce law. In Owens v Owens, Tini Owens petitioned on the basis of her husband’s unreasonable behaviour, and was denied a divorce as the trial judge felt that her husband’s behaviour was insufficient to justify a divorce. Under the current law, Mrs Owens now has to wait until 2020 to divorce her husband on the basis of five years separation, despite the fact that the marriage is over in all but label. This an unacceptable outcome in circumstances where the marriage has clearly broken down.
By removing this ‘blaming culture’ from divorce, scenarios like that in Owens can be avoided. Incidents of couples settling prior to entering the court process will be increased, it is hoped, which in turn will relieve the burden on the family courts. It will also inevitably make the divorce process less traumatic and less emotionally draining for not only the divorcing individuals, but also any children of the family. The public consultation that precipitated the change revealed that the current laws can be damaging to children as the necessity of blame apportionment can undermine the relationship between parents. By making the divorce proceedings more amicable, children will be able to benefit from more effective, and less destructive, co-parenting following the separation.
So what will change?
It is proposed that the requirement to provide evidence of a ‘fact’ around unreasonable behaviour or separation for 2 years will be replaced with a requirement to provide a statement of irretrievable breakdown of the relationship.
It will also be possible for parties to apply jointly for divorce. Though the option for one party to initiate the process will of course be retained, this creates the option for parties to enter the process together and on an even playing field, avoiding one party bringing the application against the other.
And, as mentioned above, the ability to contest a divorce will be removed under the proposed new law.
As the saying goes ‘if it ain’t broke, don’t fix it’. The general consensus is that these proposals have retained the provisions that work, and removed those that stand in the way of an amicable resolution when a marriage has irretrievably broken down.