Divorce reform for the modern age

Family lawyers have welcomed a ‘landmark moment’ as Justice Secretary David Gauke published a consultation on no-fault divorce with a proposed six-month minimum timeframe.

Currently, an individual seeking divorce must choose one of five facts showing their marriage has irretrievably broken down and give evidence of it in their petition to the court. These are: adultery, unreasonable behaviour, desertion for at least two years, two years of separation with consent, and five years separation without consent.

In the paper, Reducing family conflict, Gauke outlines proposals to abolish the requirement for a petitioner to give evidence of conduct to justify to a court the reason for the breakdown of their marriage. Instead, the petitioner would notify the court of irretrievable breakdown. The two stages of decree nisi and decree absolute would be retained, as would the bar on petitioning for divorce in the first year of marriage, and irretrievable breakdown would remain the sole ground for divorce.

Gauke also proposes abolishing the ability of a spouse to contest (or defend) the divorce. The right to contest ‘may offer abusive spouses the means to continue exerting coercion and control’, he says, and can also be used as ‘a bargaining chip’ by respondents in negotiations about money or children.

He proposes a minimum timeframe of six months, and asks practitioners for their views. Currently, the minimum time is six weeks and one day.

Nigel Shepherd, former chair of family lawyers group Resolution, which has campaigned for three decades to end fault-based divorce, said: ‘For too long, too many divorcing couples have been forced to play the “blame game”, needlessly having to assign fault in order to satisfy an outdated legal requirement.’

In 2016, nearly half of all petitioners (48,939) cited unreasonable behaviour, while 11,973 cited adultery, 637 cited desertion, 29,135 cited two years of separation with consent and 16,029 cited five years separation with no consent.

Andrew Watson, partner at Osbornes Law, said no fault divorce would ‘reduce cost, prevent delays to the separation process and avoid unnecessary animosity between the separating couple’.

Writing in NLJ this week, Graeme Fraser, partner at OGR Stock Denton & member of Resolution’s family law reform group, said the Supreme Court was ‘routinely adjudicating issues resulting from outdated family laws’. In July, it held that Mrs Tini Owens must remain married to her husband, Hugh, because irretrievable breakdown could not be proven.