Reducing Family Conflict - will consultation be effective in reforming divorce law?

Government consultation paper follows a summer of high profile judgments

On Saturday 15 September, the Ministry of Justice published a consultation paper entitled: Reducing Family Conflict, reform of the legal requirements for divorce. The consultation period is open until 10 December 2018. The paper follows the decision in the case of Owens v Owens in which the Supreme Court held that Mrs Owens was not entitled to a divorce based on her husband’s behaviour, meaning she will have to wait until the parties have been separated for five years before she is able to obtain a divorce without Mr Owens’ agreement.

It also follows the tabling of Baroness Butler-Sloss’ private members’ bill Divorce (etc) Law Reform Bill which is awaiting its second reading in the House of Lords. The bill similarly sought reform in the shape of a less blame-focused approach to divorce.

A precis of the government’s proposal is as follows:

  1. the only ground for divorce should remain the same - a marriage still has to have irretrievably broken down;
  2. to commence a divorce, one party (or potentially both jointly) should issue a notice of their intention to divorce – this would replace the need to rely on one of the five facts required in the current system, under which it is felt that adultery and behaviour petitions are often brought only because there is no requirement to wait two years for a no fault option and cause unnecessary conflict by their fault based nature;
  3. there would be no opportunity to defend the petition and contest the divorce as there is under the current system – this would be a radical change but one the government paper recognises would save cost and delay for, save in an exceptionally few cases, a different outcome overall;
  4. decree nisi and decree absolute would remain so there was still a two stage process to obtaining a divorce (three stages including the filing of the petition);
  5. there would be a minimum timeframe for completing the divorce process of 6 months but the possibility of there being an expedited procedure in exceptional circumstances. There would be no expedited system purely based on a joint application to avoid coercion within the relationship.

If implemented as drafted, the proposals would not change the requirements to evidence the marriage and for the court to check the validity of the marriage. They would, however, result in a greatly simplified procedure for individuals seeking a divorce. A significant proportion of family law professionals including the organisation Resolution have lobbied for an option to divorce on a no fault basis similar to the U.S concept of  'irreconcilable differences', which many people do not realise does not exist in England and Wales.

In reality it is the financial implications of marriage that provide the security for the more vulnerable party rather than there being genuine obstacles to progressing a divorce. In most cases the option to defend a divorce gives a party false hope that they can prevent a spouse from leaving. Many cases would progress more smoothly if there was no need to decide whose behaviour should be cited as the reason for the breakdown of the marriage. It will be interesting to see whether there is any staunch opposition to these proposals.

Lottie Tyler is an Associate in the Family law team at national law firm Weightmans LLP

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