Critical Evaluation of Proposals For Divorce Reform

At present in England and Wales, when couples are seeking a divorce there is one ground in which allows them to do so in the Matrimonial Causes Act 1973 (MCA 1973); the ground that their marriage has ‘irretrievably broken down’ . This ground must be proven by establishing one of the five ‘facts’ under the Act. The most frequently used facts are the two conduct or fault facts; this is either adultery or unreasonable behaviour. Research found that 60% of English and Welsh divorces are granted based on a fault fact , rather than waiting the minimum two years which is required for a separation fact.

The Divorce, Dissolution and Separation Bill 2019 (‘the Bill) was introduced by former Justice Secretary David Gauke MP, with the aim of removing the problematic elements of the law and replacing them with reasonable reforms to aid the couples or families going through the divorce process. The Bill aimed to make the divorce process less harmful in an effort to work alongside the Family Division’s current policy guidance of non-confrontational, forward looking and out of court resolutions in family proceedings.

The case of Mrs Tini Owens highlighted the need for legal reform in regards to divorce law in England and Wales. The Owens v Owens [2018] UKSC 41 case resulted in renewed enthusiasm for divorce reform, as the case saw Mrs Owens unable to divorce Mr Owens as he defended her divorce petition which was based on unreasonable behaviour. Mrs Owens will now have to wait to use the five years separation ground for divorce. The outdated divorce law seen in the Divorce Act 1969 was summarised concisely by Sir James Munby in Owens where he stated ‘The law which judges have to apply and the procedures which they are to follow are based on hypocrisy and a lack of intellectual honesty’ .

One of the changes introduced by the Bill is the removal of ‘fault’ facts. The fault facts used in divorce have been under heavy criticism over the years, with one criticism that the use of fault facts undermine the Family Division’s policy guidance . If the Bill is enacted, it would remove the use of the five facts regarding either conduct or separation under the MCA 1973, whilst the sole ground of the irretrievable breakdown of the marriage would remain. By replacing the five facts with an evidential process, the applicant would have to establish the single and sole ground and confirm their marriage has irretrievably broken down. The court would accept this statement as conclusive evidence that the marriage has broken down and then make a divorce order. Changing the fault facts removes the need to appoint blame to one party. The situation has been viewed as destructive for families, creating resentment between the couple seeking divorce and also, ‘given the heightened concern regarding the mental health of children the proposed change in the law is also timely’ . It was hoped that the statement of irretrievable breakdown of the marriage would rid a source of conflict, as couples tended to rely upon the unreasonable behaviour fact – even when a couple agreed on the need to separate - which the court cannot test. Fault facts can unnecessarily cause bitterness between the parties when petitioning for a divorce.

Unfortunately, they have been used by parties to abuse the system in receiving a divorce, as by using a fault fact the party would not have to wait the minimum two-year waiting period or five-year period. This is seen in England and Wales, which use the fault facts ten times more than both France and Scotland , which is due to some degree to the lengthy separation periods required in England and Wales and the costs of living separately. However, despite the Bill stating that removing the five facts would be beneficial when applying for divorce, the ministry’s response document states that ‘80% of respondents disagreed with the proposal to replace the current requirement to cite one of five 'facts' . There is worry that the removal of fault facts would insinuate that marriage can be ‘unilaterally exited’ , with little or any available recourse for the party who has been left. Also, if there is no requirement to use the fault facts when applying for divorce, there is less chance that the couple would have the incentive to work on the relationship during the divorce process to try and save the marriage. Fiona Bruce MP stated that removing fault facts is not the ‘silver bullet to remove family conflict and acrimony’, as the bigger source of contention is finance . Yet, it must be acknowledged that the current law makes divorce a straight-forward process for most cases if they are able to show that their marriage has broken down irretrievably using the fault facts. However, cases such as Owens v Owens highlighted the fact that some parties are unable to divorce, despite using the facts and are forced to remain married until the separation periods are reached. This in extension, forces couples to wait two years - or five years if they cannot agree on the terms of separation, lengthening the divorce process and making it all the more difficult for couples to move on amicably.

Additionally, in an attempt to keep relations amicable between the parties, the Bill put forward the option of allowing parties to jointly file for divorce. This was done in an attempt to reflect the practical reality that for many couples, divorce is a joint decision. This could reduce conflict considerably and be conducive ‘to a more conciliatory approach to agreeing to arrangements for the future,’ in regards perhaps to child arrangements and finance settlements. In extension, this could lead to rules put in place to require both parties to attend Mediation Intake Assessment Meetings (MIAMs) ; if couples can enter a divorce agreement together, perhaps they may be able to resolve their marriage too.

Another proposal the Bill put forward in an effort to reduce conflict was the removal of the ability of the respondent to defend against a divorce petition, unless defending on the grounds of lack of jurisdiction, fraud or procedural irregularities. The Bill states that contesting divorce aggravates possible ongoing conflict between the parties, but could also be exploited by domestic abuse perpetrators. Between April 2016 to March 2017, 64% of victims of domestic abuse were women . Research shows that perpetrators may contest evidence put forward in divorce applications so they can continue to abuse their partners . By removing the opportunity to contest, the Bill would be likely to help women and men when divorcing their abusers as there could not be any objection to a divorce . The Bill’s research showed that only two percent of respondents contest the divorce, with only a handful of those doing so in a contested court hearing . Also, those in support of the removal of contesting noted ‘that a marriage requires two people to be committed to it’ and the opportunity to contest was often about contesting the alleged facts used to file for a divorce, not to save the marriage. The aftermath of the Owens v Owens case saw a decline in public support for defended divorces and the expense of defending a divorce petition is often advised against by practitioners. There is concern that by removing the opportunity to contest divorce, one of the parties who may not wish to divorce cannot do anything to stop it. However, under current law, parties can only defend and refuse divorce due to legal reasons, not simply because they wish to remain married. By removing the opportunity to contest, the current law would no longer be directly contradicting the policy guidance of the Family Division, stepping towards modernising the 1973 Act.

An additional proposal put forward to modernise divorce law in the Bill was the reform of modernising the language used within the divorce process. The proposed words mentioned were that ‘petitioner’ would become ‘applicant’, ‘decree nisi’ would be replaced by ‘conditional divorce order’ and ‘decree absolute’ would be changed to ‘final divorce order’. These terms would be used in civil partnership dissolutions also, in an attempt to step away from civil law language and make the process easier to navigate by the parties.

Finally, the Bill wanted to introduce a minimum divorce regime timeline of a twenty-week waiting period. A Decree Nisi (Conditional divorce order) would be granted by the court after a minimum twenty week waiting period after the party’s application has been submitted. The Bill thought that by introducing a minimum timeframe before the decree nisi is granted, the parties would have time for ‘meaningful reflection’ and an opportunity to turn back and change their minds about the divorce if they wished to. It was also thought to be sufficient time to allow couples to resolve and agree on important arrangements such as finances and any children the couple may have, in an attempt to reduce unnecessary stress and acrimony if divorce is inevitable. However, the chairman of the Coalition for Marriage, Colin Hart believes that the insertion of a ‘cooling off period is wholly inadequate’ . If the divorce process is hurried, it makes reconciliation less likely between the parties .

The overall objective of the proposals for divorce reform is to create a more amicable environment for the parties. A divorce procedure is already a stressful and emotional experience, with parties feeling understandably sensitive to the comments or behaviour of their spouse. By creating a more amicable environment for the parties, it would allow them to avoid the courtroom and bigger expenses, to resolve children arrangements and finances and resolve any issues through alternatives to litigation, such as through arbitration and mediation. This may be impossible when parties have had to blame their spouse using fact faults, so by removing the opportunities to start conflict could assist in amicability between the parties. This could then lead to a healthier future between the parties, especially if the parties have to co-parent their children.

There is criticism that the Bill will cause a rise in divorce rates as couples may enter into marriage without considering the seriousness of the commitment, as it could be seen as contract which they can easily exit themselves from. However, David Gauke MP stated that although there may be an initial spike in divorce rates, this could comprise of ‘people who currently are waiting for two or five years for a divorce and that divorce would be brought forward’ . The increase could be a direct correlation to a waiting list. Baroness Hale also criticised the divorce reform Bill, questioning how the ‘one size fits all’ reform could allow parties to meet the justice of the case. Overall, the criticism that no-fault divorce will lead to couples not fully considering the commitment of marriage is largely unfounded, as most couples learn about divorce proceedings only after they have reached the decision that their marriage has irretrievably broken down and start divorce proceedings. Although the Bill hopes that their reforms may help couples reach reconciliation, if that is not a possibility at least relations between the couples and any children could be less strained.

The proposals for divorce reform in the Divorce, Dissolution and Separation Bill 2019 retained what works well in existing divorce law whilst removing parts that stood in the way of resolving arguments, aiming to make it more amicable when a marriage has irretrievably broken down. Despite the current political climate and the ongoing uncertainty of Brexit, following the Queen’s speech in October 2019, it was announced that the Bill providing for no-fault divorce was to be re-introduced, paving the way for a ‘modern and less adversarial process for those undergoing separation and change as a result of relationship breakdown’ .