Under the current Matrimonial Causes Act 1973, petitioners in England and Wales must allege adultery or unreasonable behaviour on the part of their spouse if they wish to start the divorce process immediately. Alternatively, if both sides agree, they can start divorce proceedings after two years of separation. But if the other spouse is unwilling to consent or there is no element of blame attributable to either party which led to the breakdown of the marriage, petitioners must wait until they have been living apart for a period of five years.
This was the situation faced by 68-year-old Tini Owens in July 2018, when the Supreme Court ruled that she had failed to prove her husband’s behaviour was unreasonable and would therefore have to wait five years until she could divorce him. In this case, the Supreme Court judges admitted that the law in this area is deeply unsatisfactory.
As part of the consultation process, the government acknowledged that the current requirements for a divorce can cause conflict between parties and encourage a focus on the past rather than making arrangements for the future. It also recognises the detrimental impact that such tensions can have on the children of separating parents. There is no doubt that raising allegations of fault, whether they are true or exaggerated for the purpose of meeting the threshold for divorce, can inflame tensions, which often then filter into subsequent financial or child arrangements proceedings.
Under the government’s favoured approach for reform, the irretrievable breakdown of a marriage would continue to be the sole grounds for divorce, but this would no longer need to be evidenced by one of the five facts (adultery, desertion, unreasonable behaviour, two years separation with consent or five years separation without consent). A spouse who believes their marriage has broken down would simply notify the court and would not need to have maintained a period of separation from their spouse before doing so. Also, quite significantly, there will be no opportunity for the parties to ascribe blame by providing examples of the other spouse’s behaviour. They also propose to remove the option for a spouse to contest divorce proceedings, which at the moment is very rare with only around 2% of respondents contesting.
The government’s announcement has been broadly welcomed in the field of family law and it’s hoped that these progressive changes can be implemented quickly.
If you want advice on divorce please contact one of the Family Law team members at Hanne & Co on 020 7228 0017
