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Is Brexit the reason we don’t have a no-fault divorce law?

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The law as it is leaves a lot to be desired

Divorce, although currently on the decrease, is still prevalent in society, with the Office for National Statistics quoting 101,077 divorces in 2015. However, the current state of divorce law does not make the process easy for both parties, especially when you consider emotions will be running high.

In England and Wales to obtain a divorce, under the Matrimonial Causes Act, there is a requirement to prove that the marriage has irretrievably broken down by claiming one of five facts.

Three of those facts require either a period of separation of either two years if the divorce is not contested by the partner or five years if the partner does contest.

The remaining two options are either to claim that the respondent has committed adultery, or that they behaved so unreasonably that the other cannot be expected to live with them. Therefore, if couples wish to divorce before two years of separation they must place some blame onto the other partner for the breakdown of the marriage. When applying for a divorce under these two claims, the petitioner must provide evidence or examples which are sufficient to show the irretrievable breakdown of the marriage.

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Pro-no-fault divorce group Resolution carried out research in partnership with YouGov in 2015 and found that 52% of divorce petitions were fault-based, alleging either unreasonable behaviour or adultery. Twenty-seven percent of divorcing couples who asserted blame in their divorce petition admitted the allegation of fault wasn’t true, but was the easiest option. It seems rather alarming that false allegations are being made to the court in order to obtain a divorce prior to the two year separation time period.

Case law in this area is equally alarming.

Take the recent Court of Appeal case of Owens v Owens. In the first instance the wife had petitioned for a divorce based on the grounds of unreasonable behaviour, which the husband had contested. In her petition the wife had cited some 27 allegations of the husband’s unreasonable behaviour which included his insensitivity and the fact that she felt unloved.

However, the judge, Robin Tolson QC, ruled that these allegations were “minor altercations of the kind to be expected in marriage”, and therefore the petition was not granted. This decision was upheld in the Court of Appeal, which leaves the wife stuck in a “loveless marriage” until five years pass and the wife can petition for divorce without her husband in agreeance. This case will now go to the Supreme Court and the decision may be overturned.

Nigel Shepherd of Resolution believes that this case “underlines the urgent need for no-fault divorce”. The process of citing the partner’s unreasonable behaviour or details of adultery make no difference to any financial settlements or child arrangement orders decided through the divorce procedure.

Resolution is therefore calling for a reform in the law to “allow people to break up with dignity without a two-year wait” which would lead the procedure to be more focused on finances and children and to remove as much animosity as possible. This new procedure would allow one or both spouses to give notice that the marriage has broken down irretrievably and after six months the divorce will be finalised.

This no-fault divorce system is already in place in various countries including America, the Netherlands and Scotland.

In 2006, Scotland introduced shorter periods of separation for a no-fault divorce from two years to one year for cases of divorce by separation, and from five years to two years for cases where there was no consent to divorce. Although there was a peak from 2006 to 2008 following the introduction of no-fault divorce, in 2012 there was a drop of 14% of divorces over the past four years. This implies that the introduction of no-fault divorce in the UK is unlikely to lead to a higher divorce rate.

This call for reform is not new. In fact the Family Law Act 1996 would have provided for a no-fault divorce procedure had the government of the time not deemed the provision unworkable. Also in 2015, the No-Fault Divorce Bill was put forward by Richard Bacon MP. After its first reading in the House of Commons it did not proceed any further.

Is there ever going to be a reform for no-fault divorce? Richard Adams, a specialist family lawyer, believes the government has no justification for refusing to reform the law especially as he believes there is clear evidence of the damage that current divorce procedures can cause to the couple and any children they may have.

In early 2017, Lord Pendry asked the House of Lords whether there were any plans to review divorce laws. In reply Lord Keen of Elie stated that the government was “committed to improving the family justice system” and later added:

“Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

So it does not seem like divorce reform is imminent. Felicity Chapman, an associate at Charles Russell Speechlys, believes, however, that the government’s decision to not commit time to this reform may be because of its current focus on Brexit. This may mean that following the end of this Brexit-fuelled political turmoil, the government may have more time to focus on a divorce law reform.

Zoe Bowler graduated from the University of Brighton in 2017 with a first class degree in law and criminology. She is the recipient of three academic prizes and has an avid interest in family law.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

15 Comments

Not Amused

The reason we do not have no fault divorce is because, in practice, the Family Division created a work around by not giving a hoot about the grounds for divorce in either financial or children proceedings.

So, to their credit, generations of family lawyers talked their clients out of contesting divorce and it became a wholly paper exercise.

The case of Owens is exceptional and that arguably justifies reform. But parliament has been broadly incompetent for decades and the glacial pace with which it moves is not a fault of Brexit. I think in a non-Brexit world expecting reform this quickly would therefore be wholly unreasonable.

But yes it is true to say that Brexit is consuming the focus of the government. That is I think to be expected. The daily attempts to undermine the referendum also consumed a lot of time. I have advised that it is often better for young lawyers to avoid controversial issues and I think that applies here.

Anonymous

Brexit was a death sentence for this country. It is good that appeals have slowed it down.

Anonymous

Yet another talk about divorce law without recognise the need for change in judicial attitude as divorce law remains overwhelmingly prejudiced against men

Anon

Could you explain how the law is prejudiced against men? With case law, rather than blanket assertions. Thanks!

Anonymous

1) Kathleen Wyatt case – Amongst other things, this case reflects the absurdity that you can get money out of an ex-husband many years after actually divorcing because “there is no time limit for financial provision”. Compare that with S v AG, where a man was not entitled to a portion of his ex-wife’s money because she obtained it post-separation?

2) Read up about Andrew Jones to see how family law, especially in divorce cases, is still archaic in its attitude towards men. This particular story reflects the same situation as in the UK, where it’s somehow acceptable that at least 96% of court applications for access to children are from men yet less than half succeed after maybe a year and the most they can hope for is two nights a month!

3) Rupert Nightingale, which highlights that stay-at-home fathers who give up their profession for some reason get less rights than stay-at-home mothers who do the exact same thing

4) K v L. Usually, if the assets favour the men, matrimonial and quite a few non-matrimonial assets are usually split 50/50. Yet it’s not often the case if the assets are in favour of the women and this reflects it. Both husband and wife contributed equally and had the same income yet the wife’s substantial assets (obtained pre-marriage but still used to support their home life) was not split 50/50 at all.

Trumpenreich

Oi vey! Feminist got BTFO with authorities.

Anon

1. You’ve just compared 2 very different cases. Wyatt was about whether the courts power to award financial relief is time-limited, which it’s not because there is no finality without a court order. S v AG did not conclude that the wife’s assets were gained post-separation, it found that she won the lottery during the relationship and used it to buy a home but, given the short time the parties lived there together and the fact that the original money was non-matrimonial (I.e. she won it alone) meant the husband should not be given a significant share.

2. Unless you can provide a less biased source, I’m not much interested in what The Fathers Rights Alliance have to say about Andrew Jones. There are also a lot of differences between the American family law system and the UK’s so I don’t think it’s a good comparison.

3. Without a court judgment it’s hard to get a full understanding of the Nightingale case. There was clearly something that made the judge able to conclude he had an warning capacity of £36k p/a, which fundamentally many women don’t have after a history like his. However it is not the case that women are told not to worry about working, and to carry on as they were. Given how the courts are turning against joint lives orders and PPOs in general, it’s no surprise. So if a stay-at-home husband/dad has a higher earning capacity than a stay-at-home wife/mum, it’s just maths that says he should get a bigger deduction. That case was also a relatively short marriage.

4. The fact pattern of K v L is very odd. Despite the wife’s significant wealth, the parties had lived an incredibly frugal life and so the decision concerned what the husband’s needs were. Given that the standard of living is relevant, the husband couldn’t claim a huge proportion of her wealth despite them living drastically below their means during the marriage.

I appreciate you actually providing cases, even though I don’t think they show what you suggest.

Anonymous

1) Fair enough I may have misread the S v AG case. It still strikes me as odd though as in the Wyatt case (at least from what I read), the ex-husband made his fortune a long time after the divorce was settled. I still cannot fathom how she was given such an award many years later, especially given that he remarried, which is when spousal maintenance (although slightly different to what this concerns, it’s still related) often but not always stops. It does not set a great precedent in my opinion. As for S v AG, the comparison still stands in that if the original money was non-matrimonial, how can business assets obtained over a decade after a divorce not be?

2) I agree that the family law systems are not the best comparisons but I think the judicial attitudes within those systems are definitely comparable. The Fathers Rights Alliance are still credible, in my opinion, in that they’re one of the few to highlight the unequal representation of men in family law. By the same token, you could argue a lot of groups which represent the underrepresented segments of society are biased but such groups exist precisely because they are not represented in the mainstream. After all, we (quite rightly) advocate women’s rights but why is almost seen as taboo to advocate men’s rights (where obviously relevant and not absurd)? As I said, the fact that a divorced father getting two overnight stays a month is generally the norm is quite ridiculous I think and is harmful to the overall goal of equality

3) I can’t remember which case it is but there was a relatively well-known case where a divorced mother was basically told to get on with finding a job rather than rely on a lifetime of spousal maintenance but whether that sets the precedent some believe it will set remains to be seen. As for this case, there are a few things to highlight. How his projected earning potential is calculated to be that much when he was out of employment for 11+ years to be a homemaker (as many women do) is questionable. After all, shouldn’t his role as homemaker be valued equally in the same way that it is when the homemaker is a woman, which is indeed seen as being equal to male bread-winners?

The fact that his own maintenance payment is to be partly funded out of the sale of his home while his ex-wife already has a home is also questionable. It’s highly unusual for ex-husbands to be ordered to sell the family homes that the ex-wives live in to pay maintenance.

4) An unusual case I agree but the husband and wife still put in equal contributions to family life. They have lived frugally but bearing in mind that the starting point of divorce law (and indeed marriage as a whole) in the UK is equality, it has to be questioned why the husband got £5 million when their entire wealth was represented by the wife’s wealth of £57 million and they had the exact same standard of living. You can compare that to Work v Gray or countless other high-profile divorce settlements where you could argue the settlements were more than adequate in providing for the ex-wives’ standard of living yet were still given 50% of the assets

Nigel Shepherd

Although individual experiences of the consequences of divorce will vary, and in some cases men can be left in a very difficult position, the independent evidence is clear that in fact divorce generally leaves women worse off financially in the long term. The law itself is gender neutral, but its application is discretionary and more could be done to improve consistency and certainty which would help reduce the financial and emotional cost for the family. In its Manifesto for change Resolution is calling for this along with no fault divorce and cohabitation law reform and the return of proper legal aid provision.

Anonymous

How about calling for urgent reform to address the lunacy of cases like the Kathleen Wyatt one where she was awarded £300,000 from her ex-husband some 23 years after they had divorced?

Trumpenkrieg

If you’re going to posit such a graspingly tangential link to Brexit, why not go the whole hog? Why not say that Russian hackers are the reason there is no no fault divorce in the UK?

Anonymous

It is clear the commenters above have missed the point of the article and have focused solely on one point about brexit. The main argument of the article is clearly to promote the idea of no fault divorce in this country and suggests potentially with brexit on the card we are unlikely to see development in this area of law because of it.

Maybe read more than just one the title before commenting?

Anonymous

Well written and informative but I feel the title is misleading to the actual message of the article.

DivorceHotel

An extremely well written piece which highlights the absurdity of the current arrangements in England and Wales. Keep up the good work!

Anonymous

I appreciate that Zoe Bowler may be “at the beginning of her career” but that doesn’t mean that she should necessarily be forgiven for penning an almost totally uncritical article, the inane and tiresome predictability of which is exacerbated by the arch-conformist “blame Brexit” conclusion.

A more interesting and critical question would be whether or divorcing spouses should be entitled to financial relief if (i) they are the spouse initiating the divorce and (ii) they are unable to demonstrate “fault” of the spouse from whom the divorce is sought.

The modern approach must surely be to agree that it is unviable to force people to stay in marriages when they no longer wish to do so, but also to recognize that it is unfair to have to subsidise financially someone who obviously has little respect for the basic parameters of marriage (namely, that marriage is distinguished from other forms of relationship in that it is a commitment “for better or for worse”).

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