No fault divorce: not before time


When couples divorce, it is pretty routine for one or both parties to point the finger and say that it was his or her fault. Likewise, attributing blame has been firmly woven into the fabric of the English legal system with the onus on having to prove that a marriage has irretrievably broken down. But no longer.

The Justice Secretary, David Gauke, who has previously acknowledged that the argument for reform is “strong” and that the current system creates “unnecessary antagonism”, is set to launch a public consultation on proposals to modernise legislation that belongs to another era.

In redrafting the divorce laws of England and Wales, the government plans should allow couples to split more quickly and with the minimum of acrimony. The consultation will focus on streamlining the protracted confrontational procedures couples face when they separate. In anticipation that this will lead to a major overhaul of divorce legislation, campaigners believe that it heralds a landmark moment: no-fault divorces will be allowed for the first time under English law and the right to contest the breakdown of a marriage will be removed.

The law has been stagnant for some time. As a result, it has become increasingly out of step with public opinion, provoking critics to label the current legislation archaic. Indeed, no-fault divorce was championed by The Law Commission as far back as 1990. Under the Matrimonial Causes Act 1973 (MCA), anyone who is seeking a divorce has to prove that their partner is at fault through adultery, desertion or unreasonable behaviour. The alternative, if both parties agree, is that they can part after two years of separation. But if there is neither consent nor evidence of fault, then applicants have to wait until they have lived apart for five years.

The Family Law Act 1996 and other bits of legislation moved the needle slightly towards a “no fault” divorce from the fault-based approach of the MCA – but not by much.

Gauke’s decision to look at wholesale reform has, in part, been prompted by the recent case of Mrs Tini Owens, a 68 year-old woman who wanted to divorce her 80 year-old husband, Hugh. In July, the case became the only contested divorce to reach the Supreme Court in the past twelve months. After 40 years of marriage, Mrs Owens argued that she was unhappy in a loveless union which had broken down. But on that point, her case failed. The Supreme Court judges “reluctantly” told her that she had to remain married because these were not adequate grounds for a divorce if one spouse refuses to agree: her husband’s lawyers argued that she failed to prove that the marriage had broken down irretrievably.

According to Mark Harper, partner at Hughes Fowler Carruthers, “The Supreme Court could easily have interpreted the current outdated law to grant Mrs Owens a divorce on moderate allegations of her husband’s unreasonable behaviour. Instead, they sacrificed her to be locked in a dead marriage to force the issue of the need for divorce law reform. The news of the government consultation on no-fault divorce suggests that this tactic has ultimately been successful.”

In terms of Gauke’s consultation, he adds: “This is a huge step forward towards more civilised and amicable divorce, ending the need to prove nasty allegations of behaviour.” It is hard to disagree. Calls by prominent campaigners for the antiquated system to be reformed have been vociferous and enduring.

Although Owens may have been the immediate catalyst for Gauke’s decision to examine the case for reform, it had earlier been given impetus by senior judicial figures who called for an end to the “unjust” and “outdated” laws in support of a campaign led by The Times. They include Lord Mackay of Clashfern, former Lord Chancellor, and Baroness Butler-Sloss, former Lord Justice of Appeal and President of the High Court Family Division.

In February, Lord Mackay said: “It is now over 20 years since parliament, by a large majority in the House of Commons, passed a bill removing the need for making allegations of fault in order to obtain a divorce reasonably quickly.” That bill was never implemented. No-fault divorce would have been introduced requiring spouses to attend “information meetings” encouraging reconciliation, but the government decided it was unworkable following pilot schemes. Lady Butler-Sloss added: “I am delighted if the Justice Secretary took forward and looked at the proposals for a change in the seriously out of date fault law.”

Among outspoken commentators, Sir Paul Coleridge, chairman of the Marriage Foundation, said: “The refusal up until now of government and MPs to put in place an alternative to the 1996 Act 21 years on is both pusillanimous and a total abrogation of duty. We need a full public and parliamentary debate rather than forcing judges to continue reinterpreting the law in light of changes to our society in the past 50 years.”

Six months ago, Gauke was more circumspect. “I acknowledge the strength of feeling on this issue and will study the evidence for change,” he said. But, he added that he would not “rush to a conclusion”. The Supreme Court decision appears to have pushed him into reaching the inevitable conclusion: that root and branch reform of family law is essential to meet the needs of British society in the 21st century.

Not before time.



Dominic Carman

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Dominic Carman, journalist, writer and legal commentator.

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Author: Dominic Carman