The urgency of divorce reform

family law

The Nuffield Foundation has just published research highlighting the need for urgent reform of divorce law in England and Wales.

This comes on the back of the recent decision by the Court of Appeal in Owens v Owens. In that case the Court of Appeal refused to overturn the decision of a judge in the Central Family Court refusing to grant Mrs. Owens a decree of divorce.

This was in spite of the fact that the Judge concluded that the marriage had irretrievably broken down “in fact if not in law”.

This seemingly bizarre, ‘Alice in Wonderland’ conclusion is due to the fact that the Judge had to decide whether Mr Owens had behaved in such a way that his wife could not reasonably be expected to live with him. Having heard all of the evidence from both Mrs Owens and Mr Owens the Judge came to the conclusion that Mrs Owens could not prove that her husband had behaved so unreasonably she couldn’t live with him. Accordingly, he could not grant her a divorce.

Unlike many other countries here in the UK we have not adopted a ‘no fault’ approach to divorce.

The Court of Appeal clearly had a lot of sympathy for Mrs Owens and accepted that she was left in a very invidious position. Only Parliament and a change in the law could help Mrs. Owens and others who might well find themselves in a similar position.

The divorce research

The interim findings of the Nuffield Research show that:

  • The majority of divorces are based upon “fault” – i.e. one spouse blaming the other for the marriage breakdown.
  • Relying upon the other person’s “fault” (adultery or behaviour) means that the divorce can take as little as three months instead of waiting at least two years.
  • Petitions for divorce are not necessarily accurate records of who or what caused the breakdown of the marriage. They can be used to minimise conflict. and upset. Equally they can be just one person’s view of what went wrong.
  • Since the vast majority of divorce petitions are not defended, the Court very rarely has the opportunity to test whether the allegations are true or not and whether the petition can be taken at face value.
  • “Fault” can create and/or exacerbate conflict. The knock-on effect of this is that negotiations about future arrangements for the children and resolving the finances can be adversely effected and made much more difficult.
  • In reality there is already divorce by consent on demand “but masked by an often painful and sometimes destructive legal ritual”
  • So far there is no evidence that the current state of the law protects marriage.
  • Reform of the divorce law in this Country is long overdue. “A single system of notification of intent to divorce would be clearer, more honest and neutral between the parties.”

The Nuffield Foundation went on to say that divorce petitions are drafted to ensure that a Court grants a divorce. They are not necessarily accurate records of how and why a marriage breaks down.

In a survey undertaken as part of the study of people who divorced on the grounds of the other party’s “fault”, 43 per cent of respondents to the divorce reported that the supposed facts relied upon didn’t bear much of a resemblance to their own view of the real reasons for the separation.

Judges and lawyers alike have for many years been pressing successive governments to reform this country’s divorce law and abolish all notion of fault and blame. It has been in place since 1969. There was one failed attempt at reform in 1996.

Only too often these days, one of the very first things that happens when a couple seek legal advice is that one party or the other petitions for divorce, blaming the other, thereby poisoning the well and affecting the treatment of other vitally important issues.

Divorce law and blame

The law as it stands encourages blame, acrimony and bitterness. It makes it much more difficult for parties to reach agreement even with the benefit of legal advice and encourages litigation.

In his judgment in the Owens case, the President of the Family Division, Sir James Munby, included the following quotation:-

That the present state of the English Law of Divorce and Separation is not satisfactory can hardly be doubted.  The Law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdity; and it does not produce desirable results in certain important respects. 

In fact, that was a quotation from a judgment in 1906!

Sir James went on to criticize “the hypocrisy and lack of intellectual honesty which is so characteristic and a feature of the current Law and Procedure” and pointed out that in reality, as the Nuffield Research revealed, we do already have divorce “by Consent” in that, according to his calculations, less than 0.015 per cent of divorce petitions are actually defended.

The next Queen’s Speech will be delivered next month in May 2017 outlining the government’s new legislative programme. There is absolutely no reason why Parliament cannot take some time away from considering the breakdown of one union – i.e Brexit – and consider the consequences for somewhere in the region of 120,000 other unions – i.e. marriages – which breakdown every year.

Approximately 240,000 people are involved in those marriage breakdowns. If we assume that just one half of those couples have children, and that in each of those marriages there are two such offspring, that means that 360,000 adults and children every year are effected by divorce.  That is equivalent to the entire populations of such cities as Bristol, Cardiff, Coventry, Leicester and Nottingham – to name just a few – every year.

As the very sad facts of Mr and Mrs Owens marriage demonstrate, reform is needed. It is needed urgently in fact, and the Government and Parliament have the necessary power to bring the law up to date and avoid the awful social consequences of our divorce law as it now stands.

Read more about the Nuffield Foundation research here.

Photo by Nanagyei via Flickr

Graham Coy

Graham is based at the firm's London office.

His career as a family law specialist has spanned three decades. He is an experienced advocate, mediator and arbitrator who has worked in all areas of family law.

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3 comments

Lymphad - April 14, 2017 at 11:24am

The reason why so many England and Wales divorces are fault-based may possibly be found in the Scottish experience. The essential ground for divorce in Scotland is the same, that is the irretrievable breakdown of the marriage, demonstrated by broadly similar facts:

1. Adultery by the defender;
2. Unreasonable behaviour of the defender;
3. Separation for more than two years where only the pursuer wishes divorce;
4. Separation for more than one year, where the defender consents to divorce; and
5. Gender reassignment.

The main difference, then, is that in Scotland we have one or two year separation periods for no-fault divorce, in England two or five years. According to the Scottish Government statistics, between 2010/11 and 2014/15 60-70% of divorces were on the ground of two-year separations, about 25% on one year’s separation, only 5% on behaviour grounds, with adultery making only a negligible appearance.

It is difficult to say how much the arrangements for financial provision on divorce in Scotland are contested in court, but almost two-thirds of all divorces use the ‘simplified’ procedure open only to cases based on separation where there are no children under 16 and no financial issues to be decided (i.e. there are no claims being made, or parties have agreed these between themselves without the need to involve a court). As a practitioner I can say that in more than 90% of the other cases, money matters are settled between parties and agents with a binding contract dealing with financial issues (and usually also child arrangements), followed by an un-contested divorce on the merits.

Fault based divorce can turn even the most rational of settlement discussions into a bitter battleground. The answer seems to stare one in the face, but it will ultimately be for Parliament to decide whether to recognise this or not.

Joseph ALLA - April 17, 2017 at 7:49pm

How about spelling out these the awful social consequences?
It is one thing to talk about it for so long; how about doing something about?

Brian - April 19, 2017 at 1:16am

No one is interested in a divorce and the hotch potch law that covers the mop up until they find themselves in the middle of one, it’s always someone else problem. Bad divorce law is the distraction, the real elephant in the room is The Children Act 1989 and the impotence of s2, s3 & s11j when it comes to s8 CAO’s! You can worry about grown ups (lets face it the real issue of divorce is carving everything up) after the children are sorted first! The CA 1989 child welfare is paramount principle s1 (1) can apply as a general reform strategy as well as individual cases imho (priorities)! Kids can come before wives dripping about their marital misery – divorce only allows the party the ability to remarry, if you have been miserable in one marriage it’s not likely that you are keen on doing it again straight away. Divorce – an expensive and now relatively defunct paperwork exercise (because it has been devalued to nothing) until stupid laws like the cohabitation rights bill (god forbid it becomes an act of parliament) where the sound “ker-ching” will ring from the tills and “pop” from champagne bottle corks would eminate forever in lawyers offices the country over…where even living with someone would be an expensive legal minefield when it all goes wrong that many will fall foul of through ignorance! Something you never thought would happen because someone slipped MCA 1973 s25 through the back door for unmarried couples…what if unmarried relationships defined cohabitation beyond two people. You can only marry one person but you can cohabit in a commune of greater numbers of two without consequence. Now that would be a case worth hearing, not for the smut, but the legal precidents alone!

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