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Divorce – Is Fault A Necessity?

Introduction

Currently in the UK, a couple cannot get divorced without showing one of the parties is at fault unless they have been separated for at least 2 years. The current ground for divorce is that the petitioner must show that there has been an irretrievable breakdown of the marriage by establishing one of the following 5 facts:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • 2 years separation with consent
  • 5 years separation (no consent required)

In the UK, it is not possible to divorce if the couple have simply grown apart or fell out of love, unless they have been separated for two years. There is currently no ‘no-fault’ divorce in the UK. This concept of a no-fault divorce, is adopted in many other jurisdictions, such as the USA. In the USA for example, a spouse simply has to give any reason that the state honours for the divorce. The most common of which being ‘irreconcilable differences’. The no-fault divorce process reflects the reality that sometimes neither party is at fault at the end of the marriage. Neither party is required to prove unreasonable behaviour or satisfy the grounds, rather an irretrievable breakdown, in the eyes of the parties, is enough.

The fault based system used in the UK is based on historical ideology where marriage and divorce were associated with social status. Under this view, the ‘innocent’ party was able to maintain their social status after getting divorced. With approximately 120,000 couples getting divorced every year, divorce is a process which many of us will go through, or be affected by, at some point in our lives. In the past 20 years especially, reform has been called for in this area.

The writer aims to address the current situation and whether there is a need for no-fault divorce in the UK.

Is the current framework outdated?

In order to address whether the current framework is outdated, it is necessary to understand the reasons the UK uses for a fault-based system for divorce proceedings where the couple has been separated for under 2 years. It is argued that if there is no fault, and the couple have not given a couple of years to live separately, the sanctity and importance of marriage is undermined. Whilst this may be a valid argument, one could push it as far as saying that divorce as a whole undermines the sanctity of marriage, yet it is within our freedom of person to make these decisions for ourselves, without the intervention of the law. Another argument is that divorce is made too easy, and couples do not take the time to really try and address and solve their problems. Arguably, divorce has become so normalised that people may not be considering it’s effects to the full extent that was intended.

It is argued by some that the concept of fault in divorce is exaggerated and that the reality is that fault in a petition does not have to be major and the allegations made against the respondent can be relatively mild. This argument poses that although we do not have a no-fault divorce process, if both parties are in agreement and there is assurance that the respondent will not defend (as would be the case in a no-fault petition), the reasons given can be rather light. This is a valid argument which carries sense. However, it can be opposed by a recent case, discussed below. Though the idea does make us question; if this is the case anyway, then what would be the problem be in introducing no-fault divorce to simplify the matter?

Arguments in favour of a no-fault system are pushed by a number of recognised names in the legal world. Baroness Hale of Richmond has stated that she wishes for the bitterness to be taken out of matrimonial disputes so that a person need not hold their husband or wife at fault in order to get a divorce. This argument is backed by the idea that a no-fault system would help the divorce process to proceed more amicably and to enable parents to put the needs of their children first, rather than squabbles with one another. An amicable process is ultimately much easier for any children affected by a divorce, so arguably, the opportunity should be grasped. Further, it is argued that divorce is hard enough already to go through, so we do not need the law to be pushing couples into conflicts and arguments.

A no-fault divorce system would be implemented with the idea of lessening the stress on what can be a difficult time for couples. Parties would have less incentive to air personal or embarrassing grievances all in order to apportion blame. Bringing up poor past behaviour and actively having to seek out examples of unreasonable behaviour can bring back feelings of animosity in what is already a difficult time for some couples and families.

Past Attempts to Eliminate Fault Based Divorce

In 1996, legislation was put forward which would introduce no-fault divorce in the UK. The legislation would have allowed couples to be granted a divorce within a year and would not have to apportion blame. It would have required parties to attend information meetings with a view to encouraging reconciliation where possible. The proposition was scrapped due to the government deciding that it would be ‘unworkable’ and create uncertainty within the divorce process.

A recent case has just been decided in the Court of Appeal, Owens v Owens, where the judges have dismissed a woman, Tini Owens’, appeal against the previous decision where her divorce petition was refused, as it was decided that the behaviour of her husband was not sufficient to establish that the marriage had irretrievably broken down. This was despite her counsel arguing that she is a “locked in” wife. The decision was made based on their individual circumstances and ultimately asking the question of whether the husband had behaved in such a way that the wife could no longer be expected to live with him? The Court of Appeal decided that the trial judge in the previous hearing had decided correctly; that the husband had not. In dismissing Tini Owens’ appeal, one of three appeal judges, Lady Justice Hallett, was said to do so reluctantly, recognising that the decision would leave Tini Owens in a very unhappy situation, and urging her husband to reconsider his position.

As she has lost her appeal, Tini Owens will have to wait until she has been separated from her husband for five years before getting a divorce, as he does not consent. Her QC, Phillip Marshall now intends to seek permission to appeal to the Supreme Court. This case illustrates that the current law in the area is taken seriously and, when it comes down to it, it is rather strict, emphasising the need for a well-reasoned divorce petition. If Tini Owens had won at appeal, it could have demonstrated a shift towards more no-fault based divorce, however this has not been the case.

However, this case has triggered a new plea for a no-fault based divorce system in the UK. It is agreed by many professionals in the Court of Appeal that the case was decided correctly based on the current law and its application, but that does not mean that they agree with the law the decision was based on. Sir James Mumby, president of the Family Division, questioned whether the current fault-based system is justified given the vast majority of cases where the petition proceeds by consent without interrogation by the court. Further, Nigel Shepherd, Chair of the family group Resolution, said “Nobody should be compelled to remain in a marriage against their will, yet judges’ hands are tied by the current divorce law. Sadly, all too often, couples are forced to play the blame game, and today’s decision demonstrates why this needs to change.”

There has been more recent proposals in the form of a Bill propositioning that couples are given the opportunity to submit a joint petition for divorce. Inspired by the proposed 1996 legislation, the petition would be followed by a 12 month ‘cooling off period’ before the couple were granted a divorce. This idea sounds ideal, though has its own flaws. Realistically would there be many married couples who simply agree their marriage is over with neither at fault, and be willing to wait around a year before it is finalised? Further, those who are willing may also be the same who are willing to wait two years under the current law.

Actions being taken to change the law

Resolution members (professionals in family law) held a lobby day in November 2016 where there was a mass lobby in parliament urging MPs to consider no-fault divorce. The day was successful in that influential members of parliament, such as the chair of the Justice Select Committee, Bob Neill, spoke favourably about no-fault divorce. Further, on the day when over 50 MPs were lobbied, a positive response was received which led to many of them committing to raise the issue in parliament.

Many did not realise the way the current fault based system actually works. There is a similar scenario out of parliament and it is argued that if more people were aware of the current hoops to jump in order to establish irretrievable break-down of a marriage, there would be more of a cry in the public to change this. Alongside this, 90% of Resolution members surveyed said that they supported no-fault based divorce. This figure is not to be underestimated considering that these people are the family professionals on the front line.

Ensuring your petition will suffice

Under the current framework, if a couple does not want to blame one another, they must wait 2 years’ post-separation to issue a petition for divorce. Otherwise, the petitioner must give reasons illustrating the respondent’s unreasonable behaviour. If the respondent disagrees, they are able to defend the proceedings, as occurred in the case mentioned above. For this reason, it is important that the petition is up to the standards where it can face any scrutiny.

Although petitioners are encouraged to only include brief details in the statement of case to satisfy the court, they do need to be effective and well-drafted in order to stand up if they are defended. Ways to avoid a defended petition include a notifying the respondent or their solicitors of your intention to issue a petition in advance of doing so. If you are under any doubt, it is always advised to seek legal advice prior to issuing a divorce petition, to ensure that requirements are fulfilled and that the petition can withstand scrutiny or defence.

Conclusion

The law is there to set a benchmark of how we should live our lives and the writer would pose the suggestion that the lack of no-fault divorce in the UK is crossing the line; the current law is arguably not a benchmark, rather a higher threshold to reach.

Last month, in answer to written questions the House of Lords Spokesperson, Lord Keen of Elie, said that the government has no plans to change the existing law on divorce. With all that is currently going on in the UK, it is hard to grab the media attention that would be required to cause enough of an outcry to demand immediate change, but as illustrated above, much is being done to bring in a no-fault divorce system. However, the area is well written about in legal publications, and one could argue it is only a matter of time before word spreads. The case of Owens v Owens could have a big impact in increasing the public and professional call that would be required to change the law, and the government may see themselves with no choice but to consider it.

As to addressing the question of whether a no-fault system is needed in the UK, the argument that the new framework would lead to uncertainty is one that cannot really be tested. The alternative however, would be the above suggestion that petitions do not need harsh examples of unreasonable behaviour. If this method is exercised, one could argue that it leads to greater uncertainty than the ability to apply for a no-fault divorce would. We have been given the freedom to marry and divorce, and it is appreciated that the sanctity of marriage should not be down-trodden. However, with this freedom, natural progression would be the ability to divorce without creating more animosity than necessary. Other jurisdictions have proven that it is possible and workable; the call from the public however is required, and as of Owens v Owens, we may just gain that.

Divorces often occur due to the unreasonable behaviour of one of the parties, or a thorough consideration post-separation by both, so even if this new framework were to be implemented, whether it would be utilised is still uncertain. The number of defended divorce petitions is very low, for example in the year 2017, of 113,996 petitions, there was only 2600 who expressed intention to defend and 760 who did. These statistics could be used to argue both in favour and against a no-fault system; as it highlights there is little need for fault as it is, but thus, there would be little use of a no-fault system if we were to have one.

Putting all this aside, it is the principle of having choice; the no-fault system has the ability to reduce animosity during the divorce process and for those with families especially, that ability is powerful.

If you need help or advice with divorce or separation, please call us on 0800 014 8575 or 0203 540 7665. Or if you would prefer to get in touch online, please Make An Online Enquiry  to arrange an initial 15 minute review at no charge and we’ll be in contact soon.

Tabitha McKie for and on behalf of Avenue Solicitors.

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