Government Recognises ‘No-Fault’ Divorce is a No-Brainer 

Published on 10 April, 2019 | Sam Hall

Regular readers of this ‘blog will know that it highlights finely-detailed shifts in domestic relationships.

Although we have tended to focus more on the effects of what happens in the home or workplace, it’s important not to lose sight of events outside of those environments but which potentially have consequences for both.

Over the course of almost half a century since the last significant piece of divorce legislation was passed, many such developments have come from the courts.

However, legal precedents have arguably been overtaken by parliament in terms of the latest news.

Despite still being mired in discussions about how Britain might exit the European Union, the Government has decided to proceed with plans to reform divorce.

The Justice Secretary, David Gauke, has announced how the principal motivation behind the initiative is his conviction that “it cannot be right that our outdated law creates or increases conflict between divorcing couples” (https://www.gov.uk/government/news/new-divorce-law-to-end-the-blame-game).

It’s a ground-breaking departure and follows a consultation process last year (https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/) which overwhelmingly demonstrated the need for change.

That consultation, in turn, came after a Supreme Court case in which a wife, Tini Owens, who claimed that her marriage had irretrievably broken down was denied a divorce “with reluctance” by Supreme Court judges because her petition was contested by Hugh Owens, her husband of 40 years (https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).

Mr Gauke has explained that whilst the proposed legislation will retain the need for those intending to divorce to show that their marriages have broken down, it will remove the requirement to provide evidence as to why that’s the case.

As I have been telling the Daily Telegraph and Daily Mail (https://www.dailymail.co.uk/news/article-6900691/Divorce-demand-reforms-scrap-need-blame-husband-wife-marriage-split.html) and my colleague James Brown has remarked to BBC TV’s ‘Breakfast’ programme, having to set out why the behaviour of a husband or wife had contributed to the decline of a relationship has often only exacerbated tensions between separating spouses.

If that’s bad enough for the adults concerned, the friction which can result from such a situation can have lasting negative effects for any children involved.

In my opinion, the new legislation is a major step forward for couples whose marriages do not last the course.

There are some commentators who have suggested that so-called’ no-fault’ divorce will make it easier for men and women to walk away from marriages at the first sight of possible difficulty rather than trying to work through their problems.

I reckon that’s a hugely simplistic take which fails to take account of the realities of modern family life in England and Wales and why divorce happens.

It is true that divorce more than doubled in the two decades following the introduction of the last major piece of divorce law reform (the Matrimonial Causes Act in 1973), however divorce has fallen consistently over the last 25 years.

Nevertheless, some 42 per cent of couples who exchange marital vows still see their marriages brought to a legal end (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2017#what-percentage-of-marriages-end-in-divorce).

The experience amassed from nearly 15 years as a lawyer has shown me that no couple enters into a divorce lightly.

Some do reflect on their decision to enquire about a divorce and decide that they wish to give their marriages another try after all.

The minimum six-month timeframe allocated to the process under the Government’s new legislation would still allow for that reflection to take place.

Even so, I don’t think that it would necessarily alter the resolve of many spouses to step away from a failing marriage.

It simply means that they might be able to do so without the risk of rancour and with every chance of remaining on good terms both with their exes and their children into the future.