‘Your Fault’ to ‘No Fault’ Divorce: A Trainee’s Insight

18 December, 2019

 

I expected my first few months sitting with the Family Team to be filled with high pace, high stress contention and negotiation. Whilst there have been episodes of acrimonious dispute, the majority of divorce cases I have been assisting with have involved collaborative and amicable discussions with the aim of reaching mutually beneficial settlements. My involvement sparked an interest into the history of divorce and how the current law fits in with today’s society.

The legal chronology of divorce runs as follows:

  • 1527 –Pope Clement VII refuses to annul King Henry VIII’s marriage to Catherine of Aragon, resulting in the formation of the Church of England in 1534 and England’s first ‘divorce’.
  • 1857 – The Matrimonial Causes Act (MCA) allowed average individuals to divorce. Prior to this, only 324 divorces were finalised (all of whom were high-status persons). Although open to the public, divorces were still extremely expensive and the ground for divorce (adultery) had to be proved. Additionally, women needed to demonstrate an aggravating factor such as cruelty or incest to have their divorce granted.
  • 1923 – The next MCA put women and men on ‘equal footing’ as women no longer had to show an aggravating factor.
  • 1937 – Another MCA added further grounds for divorce: drunkenness, cruelty, insanity and desertion which were useable after 3 years of marriage.
  • 1969 – The Divorce Reform Act enabled parties to petition for a divorce on the ground that the marriage had broken down irretrievably. This breakdown had to be demonstrated by one of five facts which were consolidated by the MCA 1973. It also allowed parties to divorce in local County Courts as opposed to the High Court in London.
  • 1984 – Parties become able to divorce 1 year after their marriage as opposed to 3.
  • 1996 – The Family Law Act bill attempted to introduce no fault divorces. However, the divorce provisions became messy and unworkable due to numerous amendments. Furthermore, pressure from public groups who claimed it violated the sanctity of marriage caused significant tension in Parliament meaning the provisions were repealed and scrapped.
  • 2004 – The Civil Partnerships Act allowed for same-sex couples to register and dissolve their civil partnerships. This was continued by the Marriage (Same Sex Couples) Act 2013 which provided for the registration and dissolution of same sex marriages.
  • 2019 – The Civil Partnership (Opposite-sex Couples) Regulations permitted opposite sex couples to form and dissolve civil partnerships.

 

This messy and disjointed, 162 year old, legal chain of divorce law has left us with our current legislation:

There is one ground for divorce, that the marriage has irretrievably broken down. This breakdown must be demonstrated by 1 of 5 facts: adultery, unreasonable behaviour, desertion, separation of 2 years (with the other party’s consent) or separation of 5 years.

Unless they are prepared to wait 5 years, separating couples are therefore required to jump through the ‘blame game’ hoop in order to obtain a divorce. If they are going through an amicable split, the jump often creates a sort of ‘divorce speed-bump’ which individuals find hard to get over. If there is more contention around a divorce, the jump creates further (and unnecessary) disagreement which can cause parties to lose focus on the needs of their children and resolving their financial disputes.

Owens v Owens [2018] – A case where a wife was refused a divorce because she failed to provide examples of her husband’s unreasonable behaviour which left her locked in a broken marriage for a further 3 years. This judgement highlights the very real existence of the ‘divorce speed-bump’ and exhibits the need for reform.

In my view it does seem questionable, that in today’s society, a person has to point the finger at their spouse and demonstrate that it is their fault that the marriage has broken down. An introduction of a ‘no-fault’ divorce should alleviate this burden, allowing couples to move forward and focus on the important things rather than looking back deciding who was at ‘fault’.