The government is set to propose an overhaul of current divorce laws which would allow couples in England and Wales to split without one spouse having to prove that the other is at fault.
Justice Secretary David Gauke is due to launch a consultation on no-fault divorce, according to Buzzfeed News, which will also address the length of divorces and the right to contest them.
Currently, the only way to get a divorce is if there is an ‘irretrievable breakdown of marriage’, which can only take the form of one of five ‘facts’; adultery, unreasonable behaviour, desertion, or a lengthy separation period.
This means that if the spouse who wants the split can’t prove that the other has committed a fault, they instead have to live apart for two years (if both spouses agree on the divorce) or five years (if the other spouse doesn’t want the divorce). In Scotland, these times were reduced to one year and two years, respectively, in 2006.
Growing Pressure For Change
The Supreme Court. Image Credit: Wikimedia/Tom Morris
Pressure and criticism of the current system in England and Wales has built up over recent months after a Supreme Court ruling in July refusing Tini Owens a divorce from her 40-year marriage.
The case went through several courts with her reasons for the break-up being described as ‘flimsy’. Due to her husband not wanting a divorce, she now has to wait until 2020 when they will have lived apart for five years.
Despite their decision, the Supreme Court recommended “replacing a law which denies Mrs Owens a divorce in the present circumstances.”
The Ministry of Justice added that the current system “creates unnecessary antagonism in an already difficult situation”.
The right to marry is specifically protected as a human right. Article 12 of the Human Rights Convention (which is law in the UK through the Human Rights Act 1998) means we all have the right to marry who we like.
However, the right to marry doesn’t say anything about divorce as a right. A case in 1997 found that there should be no restrictions on divorced people getting remarried, but there is no set guidance on how people should get divorced.
Laws Are ‘Out of Step’
Justice Secretary David Gauke MP. Image Credit: UK Parliament
Research has shown that English and Welsh divorce law is “out of step” with Scotland, most other European countries, and North America. The Nuffield Foundation team, led by Liz Trinder from the University of Exeter, found that reliance on fault in England and Wales is ten times greater than in Scotland and France.
They also claimed that the definition of ‘unreasonable behaviour’ is unclear, encouraging some lawyers to file exaggerated petitions, and putting people who can’t afford a lawyer off of using the faster, fault-based route.
The government’s proposals would remove fault from the process, but keep the ‘irretrievable breakdown of marriage’ as the only basis for divorce. The consultation will also consider the length of the divorce, and may remove the spouse’s ability to contest.
There are concerns, however, as to whether this consultation will create concrete results.
Shadow Justice Secretary Richard Burgon said: “Instead of yet another consultation, the Conservatives should get on with changing our divorce laws so that they are fit for the 21st century.”
Graham Coy, Partner at Stowe Family Law, also expressed caution as the government’s plans for a finalised version of the paper are unclear, adding that the possibility of reform was “long overdue”.