Justice Secretary David Gauke has delighted family lawyers by publishing a much-anticipated consultation on no-fault divorce—and has proposed a 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 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.
Writing in the foreword, Gauke says that the legal process ‘can incentivise one party to make allegations about the other’s conduct.
‘What is clear is that this requirement serves no public interest. It needlessly rakes up the past to justify the legal ending of a relationship that is no longer a beneficial and functioning one. At worst, these allegations can pit one parent against the other. I am deeply concerned that this can be especially damaging for children’.
Family lawyers group Resolution has campaigned for three decades to end fault-based divorce. Former Resolution chair Nigel Shepherd has warned of ‘the devastating impact conflict can have on families’.
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 separation with consent and 16,029 cited five years separation with no consent.
Andrew Watson, partner at Osbornes Law, said: ‘Having the option of an earlier no fault divorce will provide the majority of separating couples with a simple and non-confrontational means to effect a formal separation.
‘This will reduce cost, prevent delays to the separation process and avoid unnecessary animosity between the separating couple. A no fault divorce will allow parties the option to separate with dignity and without attributing blame.
‘With a no fault divorce there is unlikely to be any “negotiation” as to the particulars. One expects that by simplifying the process one also speeds up the process.’
In July, the Supreme Court held that Tini Owens must remain married to her husband, Hugh, in an appeal that Lord Wilson said ‘generates uneasy feelings’. Lady Hale said she had found the case ‘very troubling’ but that it was ‘not for us to change the law laid down by Parliament’.
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