It is a sign of times that when the media is talking about divorce these days, it is often referring to the UK’s imminent departure from the EU. However, last week the media was awash with talk of divorce law in its traditional sense. Specifically, that the UK Government is intending to consult on the introduction of ‘no fault divorce’ for couples in England and Wales.
Here SPICe explains what this is, what has led to the pressure for reform and some of the policy challenges which lie ahead.
Divorce law is devolved to the Scottish Parliament. Accordingly, we also discuss the current Scottish law and how likely the Scottish Government is to make a similar announcement.
‘No fault divorce’ allows a person to divorce their spouse without needing to pin blame on one person in the disintegrating marriage.
Usually there is still a period (e.g. six months) which the couple must wait it out before their divorce can be finalised. This allows some time for reflection and possible reconciliation.
No fault divorce is not an entirely novel concept in the UK. In fact, both north and south of the border, a person can divorce by showing they have been living apart from their spouse for a specified period. However, divorce is also permitted based on the behaviour of the other person – adultery is probably the best-known aspect of this law.
Where the law differs north and south of the border is on how easy it is to divorce without proving fault. This difference is important in practice.
England and Wales
The current law
In England and Wales, the relevant legislation is the Matrimonial Causes Act 1973. Under this Act one person must show that the marriage has “irretrievably broken down” before they can divorce. This can be done by proving one of the following:
- unreasonable behaviour by their spouse
- desertion for two years, i.e. that the person’s spouse has left without their consent for that period
- adultery by their spouse
- two years’ separation (where their spouse consents to the divorce)
- five years’ separation (where their spouse does not consent).
A significant number of divorces in England and Wales are still based on one of the first three factors described above, nearly 60% in 2016.
Previous attempts at reform
The Conservative government led by John Major attempted the most fundamental reform of divorce law in the recent past. Specifically, Part 2 of the Family Law Act 1996 provided for the introduction of a system entirely based on the concept of no-fault divorce.
There was a specific requirement on the couple to go to ‘information meetings’ to encourage reconciliation where possible. However, pilot schemes highlighted difficulties with this.
Part 2 was never brought into force and was ultimately repealed in 2014.
The 2017 research
In October 2017 an academic study identified multiple issues with the current system. These included that the current law may trigger or exacerbate conflict, which has a negative impact on children.
The study also suggested that divorce petitions are often not accurate descriptions of why a marriage broke down. Furthermore, the courts typically make no judgement about whether allegations associated with fault-based grounds are true.
Owens v Owens
In July 2018 pressure for reform of the law grew with the judgement in the Supreme Court case of Owens v Owens.
Mrs Owens (aged 68) was so keen to divorce her husband that she ultimately ended up in the highest court in the land. Mr Owens (aged 80) was against the divorce and said they still had a ‘few years’ to enjoy. He took the highly unusual step of arguing against her petition for divorce.
A key issue in the case was what was covered by the concept of unreasonable behaviour. Should it be behaviour which was unreasonable to her (as his clearly was) or behaviour measured against an objective standard?
The Supreme Court – with some reluctance – dismissed the appeal, meaning that Mrs Owen must remain her “loveless and unhappy marriage” for the time being. However, the Supreme Court also invited the UK Parliament to review the current legislation.
A private members’ bill
Also in July 2018, Baroness Butler-Sloss, a crossbench peer and former senior family judge, introduced her private members’ bill. Its provisions require the UK Government to undertake a review of the law. The UK Government is thought to be working with her in preparing its own consultation on possible reform.
The current law
The circumstances in which a divorce could be obtained in Scotland used to be the same as in England and Wales.
However, the Family Law (Scotland) Act 2006 amended the Divorce (Scotland) Act 1976. No doubt mindful of the UK Government’s previous experience, the then Scottish Executive took a pragmatic approach to reform.
Under the amended 1976 Act, irretrievable breakdown of marriage can be demonstrated by:
- unreasonable behaviour
- one year’s separation (where the other person consents)
- two years’ separation (without the other person’s consent).
The Scottish Government’s position
The Scottish Government is currently working on proposals to reform several important aspects of Scottish family law. However, reform of divorce law is not thought to be on its agenda.
This position is not particularly surprising. The shorter time periods for the Scottish separation-based grounds have proved to be extremely significant in practice. Just 5% of divorces in Scotland now take place on fault-based grounds.
Introducing a system of no fault divorce may prove challenging for the UK Government.
For some, having fault recognised in the divorce process remains very important. The Scottish Parliament had a recent reminder of this with a 2016 petition arguing for an expansion of the definition of adultery.
While no fault divorce has many supporters, there are also those who strongly oppose it. For example, in November 2017 the Coalition for Marriage set out “five reasons why ‘no-fault divorce’ would be a disaster for marriage”.
The Scottish Government is likely to be watching future English developments with interest.
Sarah Harvie-Clark, Senior Researcher (Civil Law), SPICe