Is no-fault divorce the answer?

The breakdown of a marriage is never going to be easy for those involved but could reforming the law surrounding divorce make this process easier? Many legal professionals think that divorce law is out-of-date, particularly following the case of Owens v Owens [2018].

Owens v Owens [2018]

Briefly, Mrs Owens filed a divorce petition in May 2015 based on the ground of Mr Owens unreasonable behaviour. Unusually, Mr Owens defended the divorce and the Court found that although the marriage had broken down, the evidence provided by Mrs Owens as to Mr Owens unreasonable behaviour was ‘flimsy’ and did not satisfy the requirements of the law. His behaviour was not deemed to be so unreasonable that Mrs Owen’s found it impossible to live with him; unhappiness in a marriage is not a ground for divorce. The Judges in this case agreed that the law was inadequate because the marriage had clearly broken down but not in a way recognised by the law.

Divorce

At present, if you are seeking a divorce you must either prove that your partner is at fault through adultery, desertion or unreasonable behaviour, or if agreed, divorce your partner after being separated for two years. Without consent or evidence of fault, you will have to wait until you have lived apart for five years before issuing divorce proceedings. These are the five grounds for divorce.

What would a no-fault divorce look like?

The five grounds for divorce would be removed and you would simply have to notify the court that your marriage has irretrievably broken down. By doing this, the concept of ‘fault’ is removed. This consultation ran from 15th September 2018 to 10th December 2018 and after reviewing the public feedback on the reform, it was announced on 9th April 2019 that the ‘blame game’ was over and new legislation will be introduced to Parliament.

Proposed changes

We await the full details of the new proposed legislation but understand that the proposals are to include retaining the fact that your marriage has failed irretrievably and the two stage process for dissolving your marriage (decree nisi and decree absolute). Strangely, the proposals will include the removal of your ability to contest a divorce- how can it be that your spouse can inform the Court that your marriage has irretrievably broken down but you cannot disagree with that?

Arguments for no-fault divorce   

It is thought that no-fault divorce will reduce family conflict by the fact you need not hold your spouse accountable for the breakdown of your marriage. This allows you to focus on important issues such as the children, the property and how the finances are to be dealt with in a more amicable way.

Arguments against no-fault divorce

No-fault divorce may damage the sanctity of marriage. There is a risk that you would opt for divorce rather than try to save your marriage when going through difficult times because the process would be straight forward and more accessible. Also, there is an argument that if your spouse has behaved unreasonably throughout the marriage or committed adultery that their actions are to blame for the marriage breakdown and therefore should be held to account.

Should the Government consider the possibility of no-fault divorce being the sixth ground for divorce rather than it replacing the existing five grounds? It seems that the Government have rushed into reforming divorce law following Owens v Owens when in reality there are other aspects of family law that are in desperate need of reform, in particular cohabitation law.

Krista Enziano is a Solicitor in the Family Department at O’Donnell Solicitors. For more information or a second opinion, please contact her on 01457 761320 or email [email protected]