No Longer Finding Fault: Divorce Reform and Domestic Disputes 

Published on 27 February, 2019 | Judith Klyne

For anyone glancing over the pages of our national newspapers during the course of the last two years or so, it might appear that there’s been a single, rather significant piece of legislation dominating proceedings in Westminster.

Even though a study by the House of Commons’ library shows that MPs are perhaps not as prolific in filling up the statute book as they were half a century ago, it still revealed that some two dozen Acts of Parliament were passed in 2016 (https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7438#fullreport).

Given that volume of business, it might, therefore, come as some surprise to find that the law governing how couples in England and Wales divorce – the Matrimonial Causes Act – came into being almost half a century ago.

In that time, the fabric of Britain’s households has changed dramatically. Divorce itself has, according to some commentators, gone in and out of fashion – rising to a high of more than 165,000 in 1993 before, in 2017, returning to levels last seen before the law changed in 1973 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce).

Look a little closer at how people are divorcing, though, and a number of other patterns emerge.

For instance, 37 per cent of all divorces granted to husbands in 2017 were because of their wives’ unreasonable behaviour. Just over half of wives granted divorces (52 per cent) were following a similar claim made against their husbands.

Whilst it is less likely to be contested than adultery – and rather easier to prove – it still involves spouses making allegations about their exes’ conduct in order to bring an apparently failing marriage to a close.

Unreasonable behaviour covers a broad range – from not socialising together or spending too long at the office to debts, drugs and even violence.

Understandably, even individuals in an amicable split can bristle at having allegations of any sort made about how they treat their partners, so they resent being confronted with an unreasonable behaviour petition.

It certainly doesn’t start the process of ending a marriage on the right footing and can lead to acrimony even before the more regularly contentious elements of divorce, such as dividing assets or determining who looks after a couple’s children, are discussed.

What makes the process even more bewildering is that many resort to allegations of behaviour because there is no practical alternative. There may not have been infidelity justifying an accusation of adultery. Equally, neither husband nor wife might relish the prospect of waiting five years to petition on the grounds of separation before formally starting a newly-single life.

That’s why the news that ministers are apparently in favour of finally reforming the law to allow so-called ‘no-fault’ divorce is so significant and welcome (https://www.thetimes.co.uk/article/divorce-laws-rewritten-after-times-campaign-2slf5plzk).

It offers a sensible, long overdue opportunity for couples who come to the conclusion that their lives together may have reached a conclusion to part without the need to metaphorically hurl mud.

The issue came to a head with a Supreme Court ruling in the case of Tini and Hugh Owens last year (http://www.bailii.org/uk/cases/UKSC/2018/41.html).

It was the result of Mrs Owens’ attempt to divorce her husband of 40 years after a catalogue of behaviour which, she suggested, demonstrated how their marriage had irretrievably broken down.

However, given her husband’s assertion that the opposite was in fact true, she was – in her words – obliged to remain “trapped” in a “loveless” marriage even though the Court recognised the frustrations of the law as it stands.

The hope is that spouses like Mrs Owen would be more able to divorce if the Government fulfils its promise and introduces a Bill to make no-fault divorce a reality.

I don’t think agree with sceptics who reckon that the change would make it too easy for couples to leave a disagreeable relationship.

In my experience, individuals who go to the trouble of seeing a lawyer about divorce have generally made up their minds that the time is right to end their marriages.

There is a slight complication, of course, in that although family law reform might seem a good idea, it’s not an altogether rapid process.

A third attempt to provide Britain’s growing number of cohabitees with certain financial protections if their relationships end or their partners die saw it introduced into the House of Lords two years ago, since when it has not received any more parliamentary time (https://services.parliament.uk/bills/2017-19/cohabitationrights.html).

Furthermore, Brexit is not only increasing tensions in Westminster as the formal date of withdrawal from the EU draws ever nearer. It could result in Theresa May’s Government collapsing and the reins of power being taken up by a new administration which doesn’t view divorce reform as such a priority.

Even so, I would hope that the change isn’t too far away.

In the early 1970s, as MPs were signing up to the last change in divorce law, membership of a European club then known as the Common Market was seen as desirable.

Over time, national and domestic ambitions change and it would be only right if such important shifts in opinion are recognised by the country’s law-makers.