Senior Partner David Young discusses planned changes to England and Wales’ ‘fault-based’ divorce system.
The current divorce laws of England and Wales are some 50 years old and most would argue, in desperate need of an overhaul to reflect societal changes and, in particular, a realisation that the current “fault-based” system can easily introduce additional stress and disharmony in already difficult circumstances.
At present, under the Matrimonial Causes Act 1973, an applicant is required to prove “irretrievable breakdown” of the marriage in one of five ways, three of which (adultery, desertion and unreasonable behaviour) requiring, expressly or implicitly, criticism of the other party. The long running saga of Owens –v- Owens attracted much press and other media coverage in 2018 when the Supreme Court ruled that Mrs Owens, despite being separated since 2015, was not entitled to a divorce because her allegations of “unreasonable behaviour” had either not been made out or were not sufficiently serious. Mrs Owens would have to wait for her divorce until she had been separated for some 5 years from her husband.
Partly no doubt because of the Owens case, the Divorce, Dissolution and Separation Bill was put before Parliament in June 2019 and enjoyed significant cross-party support. The Bill effectively removes the element of “fault” from the divorce arena so that anyone who has been married for more than a year would be able to apply for a divorce in the knowledge that his/her wife/husband will not be able to block it. There is a minimum timeframe of 6 months from the issue of the petition to Decree Absolute but effectively it leaves both parties free to discuss the most important issues arising from the breakdown, namely those relating to any children or finances confident in the knowledge that the divorce will be a simple administrative process.
The progress of the Bill through Parliament has been interrupted by Brexit debates and, more recently, the General Election but nonetheless, family lawyers are hopeful that the legislation will be passed in 2020. Until that time however, the current creaking and archaic system will have to suffice.
The Gaby Hardwicke Family Law Department will be happy to offer confidential advice, tailored to your particular circumstances.