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Justice Secretary to consult on introduction of no fault divorce

Reading time: 2 mins 48 secs

Alice Sanderson, September 13, 2018

Background

In May, we discussed whether divorce laws in England and Wales are outdated. This was in response to the case of Owens v. Owens, which at the time was still ongoing, but has now been concluded.

In Owens v. Owens, Tini Owens wished to divorce her husband of 40 years, Hugh Owens, but he refused to grant her permission for the divorce because he said they still had a ‘few years’ left to enjoy together.

She had taken her wish for a divorce all the way to the Supreme Court, but the court found in favour of Mr Owens. However, they said they did so reluctantly, as the current laws prevented them from being able to act.

No fault divorce

Following this decision, the idea of introducing 'no fault' divorces in England and Wales has been discussed widely, from legal experts, to politicians, to your plumber Dave and his mates down the pub (probably).

With no fault divorce, couples would not have to assign blame to one party, hopefully resulting in fewer acrimonious divorces.

Currently, to get a divorce you must choose from a number of set options, such as unreasonable behaviour or adultery. Crucially, the reasons must be agreed upon by both parties if you have been separated for less than five years.

This draws out the process, as in the case of Mrs Owens, who has only lived separately from her husband for three years and must now wait until 2020 for a divorce.

Recent developments

While no fault divorce has long been debated, and more so since the case of Owens v. Owens, it was only last week that a Whitehall official confirmed that the Justice Secretary David Gauke is considering a change in the law, and civil servants are in the process of drawing up a consultation.

The consultation is expected to consider whether to abolish the right to contest a divorce, and to look at proposals to remove the need to provide reasons when ending a marriage.

Scotland ahead of the game

The law in Scotland is already ahead of that in England and Wales. A divorce is permitted in Scotland where both parties agree within one year (instead of two in England/Wales), and where one party contests, it is only two years rather than five.

This difference is reflected in the statistics for adultery. In 2016 only 6% of divorces in Scotland were based on adultery or unreasonable behaviour, compared to 56% in England and Wales.

Comments

In a speech to family lawyers earlier this year, Lady Hale, president of the Supreme Court, said that allowing one spouse to blame another not only “provokes unnecessary hostility and bitterness”, it also makes things worse for children involved.

While the Justice Department refused to comment on the consultation, they pointed toward David Gauke’s comments from earlier this year, following the conclusion of Owens v. Owens in May, when he said: "The case for making it a less antagonistic system is strong."

Spokesperson for First4Lawyers, Andrew Cullwick, said: "This news has been long awaited by judges and lawyers alike, and a change in the law is much needed.

"Divorce laws have not been updated since the Matrimonial Causes Act 1973, 45 years ago. Times have changed, and a consultation is at least needed to see how the public feel about no fault divorce.

"We welcome the consultation and look forward to seeing the results."