Divorce reform in England and Wales to lose need for blame and consent
Divorce law in England and Wales will undergo its most significant reform in 50 years with the removal of the need to allege adultery or unreasonable behaviour to start proceedings straight away, as well as the need for the spouse to consent to the divorce.
The changes were announced following a 12-week public consultation to assess support for a move away from the fault based system of divorce. Under current rules, a spouse can only petition for divorce straight away if they can allege adultery or unreasonably behaviour. Otherwise, they have to wait two years until after the marriage has irretrievably broken down if their spouse consents to the divorce.
If the spouse does not consent the petition has to wait until five years after the marriage has irretrievably broken down. That was the scenario before the Supreme Court recently in the case of Tini Owens who wanted to divorce her husband of 40 years on the grounds that she was unhappy. Her husband refused to agree to the divorce and the Supreme Court had to reject her appeal on the basis that she had not established one of the fault-based reasons to justify an immediate petition, and the marriage had not irretrievably broken down for 5 years or more. One of the judges involved in the case, Baroness Hale, has regularly called for the need for reform of what she described as “unjust” laws.
As a result of the divorce law reforms, the petitioner will only have to state that the marriage has broken down irretrievably. There will be no time requirement and the spouse of the petitioner will not have to consent to the divorce.
There will however be a minimum timeframe of six months from the date of the petition to the date the decree absolute is issued. The decree absolute is the legal document that confirms that the marriage has been legally brought to an end. After the six month period the applicant will have to affirm their decision to request a divorce.
Campaigners in favour of a no fault divorce system say that it will reduce the stress and tension involved in divorce, and that it will help avoid the situation where children of the marriage are exposed to ongoing conflict between their parents. Most family law solicitors prefer to shift the focus of the process to helping couples bring their relationship to an end and make sensible and healthy living arrangements for their children.
Those who oppose the reform to divorce law often do so over concerns that it would make divorce too easy and therefore cheapen the value of marriage.
Justice Secretary David Gauke said the changes will help bring an end to the “blame game”, adding that “we are not going to keep marriages together by having a divorce process that just makes it more acrimonious [and] tries to apportion blame in such a way that the couple are likely to have a weaker, poorer relationship subsequently than they would otherwise do.”
There is not currently any plans to extend the reform to divorce laws in Northern Ireland.