Government to re-examine the case for “no-fault” divorce

In February, we noted media reports that the new Justice Secretary, David Gauke, had agreed to look again at the case for ‘no-fault’ divorce in England and Wales. According to the report, he told the paper that he understood the strength of feeling on this issue and would study the evidence for change, but would not “rush to a conclusion”.

On Thursday, Baroness Anelay of St Johns asked Her Majesty’s Government “what plans they have, if any, to reform divorce laws in England and Wales”.

Replying on behalf of the Government, Baroness Vere of Norbiton (Con), said:

“My Lords, divorce is a challenging time for couples and their children. This is particularly the case when people have to deal with allegations about a spouse’s conduct. The Government are looking closely at divorce law to see what can be done to reduce conflict. We want above all to limit the adverse impact on children. The Government are also listening to calls to change the law on financial provision in divorce. We are open to reviewing the evidence for change.”

In answer to a supplementary question, she continued:

“The case of Owens v Owens in the Supreme Court this summer is not typical. Only 2 per cent of respondents contest the divorce and only a handful of those do so in a contested court hearing. However, we have noted the judgment and, as importantly, the comments of Lord Justice Munby that change is needed. My right honourable friend the Lord Chancellor is sympathetic to the argument for reform and appreciates the positive changes being put forward by the noble and learned Baroness, Lady Butler-Sloss, in her Private Member’s Bill. We look forward to working with her.”

She noted that no-fault divorce could have been introduced under the Family Law Act 1996:

“However, that legislation was, some would say, overly amended, and in the end it became impracticable. Those provisions were repealed in 2014. However, we will go back to that legislation to see what Parliament agreed then. Society and probably parliamentary views have moved on since then, and I hope that we can craft something proper for the future.”

Comment

As we have noted previously, when a contested divorce came before the Court of Appeal in Owens v Owens [2017] EWCA Civ 182 – in which the husband refused to divorce the wife because he did not believe that their marriage had broken down irretrievably –  the Court dismissed Mrs Owens’ appeal with, in the words of Hallett LJ at [99], “no enthusiasm whatsoever”. On appeal, in Owens v Owens [2018] UKSC 41, the Supreme Court seemed equally unhappy: Lady Hale PSC had found it “a very troubling case” [46] and was only “reluctantly persuaded” that the appeal should be dismissed [54].

Perhaps the time for reform has now come.

Footnote: Scotland

Scotland already has a simplified procedure that can be used where:

  • the application for divorce or dissolution arises from the irretrievable breakdown of the marriage or civil partnership based on one-year separation with consent or two years separation without consent, or because of the issue of an interim gender recognition certificate;
  • there are no children of the marriage or partnership under the age of 16;
  • there are no financial matters to sort out;
  • there are no signs that either party is unable to manage his or her affairs because of mental illness, personality disorder or learning disability; and
  • there are no other court proceedings under way that might result in the end of the marriage or civil partnership.

There are also residence/domicile requirements.

Cite this article as: Frank Cranmer, "Government to re-examine the case for “no-fault” divorce" in Law & Religion UK, 8 September 2018, https://lawandreligionuk.com/2018/09/08/government-to-re-examine-the-case-for-no-fault-divorce/

 

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