A long awaited reform of the divorce laws in England and Wales now seems close to becoming a reality, after Buzzfeed News revealed on 7 September that “justice secretary David Gauke is set to announce a consultation on no-fault divorce in which he will call for the existing fault-based system of establishing marriage breakdown to be abolished”. There has been no official Ministry of Justice announcement as yet, but the story was picked up by The Times (£) the following day, under the headline “Divorce law revolution puts end to blame game”.
Both “blame game” and “no fault divorce” are references to the current requirement, under section 1 of the Matrimonial Causes Act 1973, that those petitioning for divorce must show that the “the marriage has broken down irretrievably” by proving one of five “facts”. These are (a) that the respondent (the other party in the marriage) has committed adultery, (b) that the respondent has “behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” (often mistakenly referred to as “unreasonable behaviour”); (c) that the respondent has deserted the petitioner for a period of two years or more; (d) that the parties lived apart for a period of two years or more and the respondent agrees to a divorce; (e) that the parties have lived apart for five years or more, whether or not the respondent agrees to the divorce.
What the change in the law would do is remove the obligation to prove one of those five “facts” – most of which appear to accord blame or fault on at least one of the parties. Until we see the consultation, we cannot be sure exactly what the government proposes to put in its place, but there is a very good chance it will either adopt or be very similar to proposals already put forward in the form of a private members’ bill by Baroness Butler-Sloss, who is currently a member of the House of Lords, but was once President of the Family Division. The government has previously indicated that it would support her proposals.
The key element of her proposal is the removal of the need to establish a factual basis for ‘irretrievable breakdown’ of a marriage or civil partnership. Instead, her Divorce (etc.) Law Review Bill proposes, first, that there be a review of the law on divorce as it currently stands, conducted by the Lord Chancellor, with a view to then replacing it with a new “scheme for divorce and judicial separation, and the equivalent for civil partnerships, based on a system of application and confirmation”. No further evidence or reason would be required.
The reform is something Resolution (a group of family lawyers) has been calling for ever since it was formed. The Bill is the result of work by legal and relationship experts, politicians and family lawyers, following a research report, Finding Fault, led by Professor Liz Trinder from the University of Exeter Law School, and published by the Nuffield Foundation. This found that couples often exaggerated the alleged faulty conduct in order to expedite the divorce process, leading to unnecessary stress and confrontation. The Times has also been calling for reform, and reports that: “The proposal fulfils a key demand of Family Matters, a campaign begun last year by The Times and the Marriage Foundation urging reform of divorce and other family laws.”
The need for reform was highlighted by the recent decision of the UK Supreme Court in Owens v Owens  UKSC 41;  3 WLR 634 dismissing the appeal of a wife who was unable to obtain a divorce because, under section 1(2)(b) of the 1973 Act, she could not establish that her husband’s behaviour had been such that it would be unreasonable to expect her to continue in the marriage. The case attracted a good deal of publicity, with Sir James Munby, then President of the Family Division, saying in his judgment in the Court of Appeal  EWCA Civ 182;  4 WLR 74 at  that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
Baroness Butler-Sloss is not the only member of the House of Lords to have launched a private member’s bill calling for reform of the divorce laws. Baroness Deech has also put forward a bill, the Divorce (Financial Provision) Bill, which has already had a debate on its second reading on 11 May 2018. One purpose of her Bill is to provide legislative backing for the binding effect of “pre-nups” – pre-nuptial contracts providing for the distribution of marital property in the event of a divorce. Currently they are considered “persuasive” but ultimately it is a matter for the court’s discretion.
But another widely publicised purpose of the Bill is to end the so-called “meal ticket for life” by limiting the financial provision to be made on divorce, providing for a default position that after payment of any debts the property should be split 50:50, and that financial support payments ordinarily should be limited to five years after the divorce. However, the factors the court can take into account in making such an order are numerous and varied, so it is hard to see how in practice the effect will be very different from the current approach. The idea of the “meal ticket for life” is frankly a bit of a myth, or hoary old chestnut, as Polly Morgan explained in relation to another recent case in the Supreme Court, Mills v Mills  UKSC 38;  1 WLR 3945: see her blog post, Hit on the head by an old chestnut.
It is not clear whether Baroness Deech’s reforms to financial provision swill be included in the consultation, alongside the removal of the element of fault in obtaining a divorce. But given that the current law has been in place, in one form or another, for half a century, it would make sense for the government to look at all the options.
The Times is hosting a ‘top level debate’ about divorce law reform later this month. Chaired by Sir James Munby, the former President of the Family Division, the panel will include Sir Paul Coleridge, former High Court judge and now Chairman of the Marriage Foundation, Lord Mackay of Clashfern, a former Conservative Lord Chancellor, Lucy Frazer, Minister for Justice, Rod Liddle, columnist on The Sunday Times, and Professor Liz Trinder, Professor of Socio-legal Studies, Exeter University (whose research we mention above). They will discuss what they feel should be the key areas of focus for the reforms and what their recommendations would be.
Most of the panellists appear to have a good reason for sharing their views, and the benefit of their work and experience, on this topic. However, we are less sanguine about the value of Rod Liddle’s contribution, given his rudeness about Sir James Munby in an article in the Sunday Times earlier this year (see Name-calling of judges). Perhaps he was included for what might be called, for the sake of argument, “balance”.
The event takes place at The News Building on the evening of Monday, September 24, at 6pm for a 6:30pm start.
FURTHER UPDATE [15/9/18]
The Secretary of State for Justice, David Gauke, has now officially confirmed that the government “plans to reduce conflict in divorce”. The announcement dated 15 September 2018 launches a government consultation, which sets out a number of proposals, including:
- retaining the sole ground for divorce: the irretrievable breakdown of a marriage
- removing the need to show evidence of the other spouse’s conduct, or a period of living apart
- introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
- removing the opportunity for the other spouse to contest the divorce application
The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.
Featured image via Shutterstock.