The urgency of divorce reform
By:3 commentsApril 13, 2017
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
April 13, 2017