Current state of play

The law as it stands at present provides for only one ground for divorce, namely the irretrievable breakdown of the marriage.

In addition to the sole ground for divorce, it is necessary to rely on a ‘supporting fact’ and there are five of these set out in law. Three of these are ‘fault’ based (adultery, unreasonable behaviour and desertion) and the remaining two are ‘time’ based (two years’ separation where the other spouse consents to divorce, and five years’ separation where the consent of the other spouse is not required).

In the case of ‘unreasonable behaviour’ the precise wording is ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.

Owens v Owens

The saga of Mr and Mrs Owens hit the headlines in July 2018 when the Supreme Court gave judgment in the case of their disputed divorce. Mrs Owens had issued divorce proceedings more than three years earlier but, unlike the vast majority of divorces in this country, this particular divorce suit was defended by Mr Owens. Whilst the divorce petition issued by Mrs Owens had been based around her husband’s alleged ‘unreasonable behaviour’, Mr Owens argued that the marriage had essentially been successful and, as such, the marriage had not broken down irretrievably. The decision of the Supreme Court, which upheld the earlier decisions in the Court of Appeal and the Central Family Court, was that the marriage had broken down, but that Mrs Owens had not made out her ‘unreasonable behaviour’ allegations. The result was that Mrs Owens had to remain married to Mr Owens until such time as she could pursue a divorce petition based upon five years’ separation, which was not until 2020.

In making the decision, the Supreme Court applied the law as it currently stood but at the same time, invited Parliament to review the law.

Consultation

In September 2018, following on from the comments of the Supreme Court, the government launched a consultation concerning reform of divorce law.

The consultation proposed that the sole ground for divorce should remain, but the changes should be made to remove the ‘fault’ and ‘time’ based supporting facts. It was proposed that it should be replaced with a notification process. The consultation ran until 10 December 2018.

Analysis

The case of Owens was highly unusual. However, it has brought the current law and arguments for its reform into sharp focus. Government data shows that there were 110,000 divorce petitions issued in England and Wales in 2017. Of those, only 2% were defended. Even fewer of the 2% actually proceeded to a contested divorce hearing.

Proposals for divorce reform were put forward in the mid-1990’s as part of the Family Law Act 1996. Those reforms were never enacted and so, at present, the divorce law is still enshrined in the Matrimonial Causes Act 1973.

For the time being, the existing law remains in place, but not for much longer.

Outcome

Following the consultation, the Divorce, Dissolution and Separation Bill gained the Royal Assent on 26 June 2020, changing the process for future divorces.

It has been confirmed that no fault divorces will be available to individuals from 6th April 2022.

This means that the five “supporting facts” will no longer exist and a party seeking to divorce their spouse will only be required to provide the Court with a statement confirming that they regard the marriage as having broken down irretrievably. In so far as the current law is concerned, irretrievable break down of the marriage will remain the ground when pursuing a divorce.

The changes will also allow both spouses to apply for the divorce under a joint application, which will remove the hostility and acrimony which occurs all too often.

Unlike the case of Mr and Mrs Owens, the new reform will not provide the Respondent (the party whom the divorce is made against) with the ability to contest the divorce, which will provide the Applicant (the party applying for the divorce) with the reassurance that they will not be forced into expensive and prolonged court proceedings to deal with a defended divorce by their spouse.

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