The Current System and Its Faults
Since 1973 there has been only one ground for divorce which is that the marriage has broken down irretrievably. In order to demonstrate this to the Court, the Petitioner (the person who applies for the divorce) must prove one of five facts being: adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation without consent. Both desertion and five years separation are rarely used.
Unreasonable behaviour and adultery are naturally confrontational grounds as they require allegations of a persons conduct which must be either accepted or denied by the Respondent (the person being divorced). It is the case that, where unreasonable behaviour is cited, the Respondent has the option to allow the divorce to proceed without admitting the stated behaviour but the behaviour must still be asserted. Many people still feel that by agreeing to the divorce you are in some way accepting responsibility for the breakdown of the marriage. Divorces which are not allowed to proceed by the Respondent are rare but not unheard of and the cost, stress and anxiety caused by requiring Court proceedings can be vast. The need for acceptance of some element of fault can also have a significant bearing on how agreeable or acrimonious both parties are inclined to be. Agreement to an element of fault in order to avoid Court action is particularly concerning in abusive relationships as it provides abusers with an opportunity to exert further control over the party seeking to leave the marriage as often people in this situation simply do not have the emotional or financial ability to progress matters to Court.
As for the option of two years separation, whilst on the face of it this offers a simple no fault solution there are a number of issues. The first being that the need to be separated for two years is often impractical as often very little can be resolved in terms of the finances until the divorce is in hand. The second is that the requirement for consent again causes problems for those trying to divorce an abusive or controlling partner. This is made worse by the fact that, having waited two years, if an agreement can’t be reached then very often the previous grounds for divorce such as unreasonable behaviour are no longer available to the parties.
Owens v Owens
The case of Owens v Owens was pivotal in Parliament’s decision to reform the current divorce system. Mr and Mrs Owens had been married for 37 years and, after separating in 2015, Mrs Owens petitioned for divorce on the basis of unreasonable behaviour. Mrs Owens cited no less than 27 examples of Mr Owens’ behaviour but Mr Owens opted to defend the divorce on the basis that he still wished to remain married. Upon examination of the 27 examples of unreasonable behaviour given, the Court came to the uncomfortable conclusion that none were sufficient to evidence that Mrs Owens could no longer be reasonably expected to live with Mr Owens and therefore the pair should remain married until either Mr Owens consents or the couple have been separated for five years. This is a stark example of how the current system can compel an unwilling spouse to remain married without any available alternative.
The key point to note is that the ground for divorce i.e. that the marriage has broken down irrevocably is to remain the same. The real change comes with the proposed removal of the five facts used to demonstrate this to the Court. As opposed to a “divorce petition”, one party would be required to issue a statement of irretrievable breakdown to the Court and to the other party by way of a Notice. The ability for one party to defend or contest the divorce has also been removed. These steps are in principal a good idea as it allows either party to advance a divorce without the need to satisfy one on the restrictive five criteria and it potentially removes the confrontational elements outlined above. They also address the issues regarding coercive behaviour and the need for negotiation in order to avoid Court action which can so often cause considerable delay and costs. A few points to note are that the option for a joint application for divorce will become available meaning that those parties who still enjoy amicable relations will be able to agree the terms without the need to state the fault of one party.
There are however a few concerns, the first being that there has been no guidance as to what the threshold for “irretrievable breakdown” is likely to be or what level of detail is to be provided. Indeed, without the structure of the five facts, it is very easy to imagine that such statements could be used to vent all the resentment a party has towards the other rendering any amicable discussions about the finances impossible. There is also the issue that by removing the ability to defend the divorce, the Respondent now has no means to challenge false assertions regarding their conduct. A divorce petition is after all a public document and it is worrying to think that, for example, unsubstantiated claims of domestic violence could be endorsed by the Courts publically without any right for the Respondent to reply. There have been concerns raised as to the ease in which parties can now get divorced. Marriage is a solemn commitment which has binding legal consequences and in order to address these concerns, couples will still be unable to divorce within the first year of marriage and a proposed minimum divorce time frame of six months will come into effect. The principle being that by creating a enforced break where the parties cannot get divorced it provides ample opportunity for marriage counselling and reconciliation.
Overall, the movement towards a truly no fault divorce system is one which will be welcomed by practitioners and divorcing couples alike and whilst there are a number of concerns that still require some thought, it is plain to see that this is a momentous step in removing much of the aggravation, stress, anxiety and cost which so often blights current divorce proceedings.