In a move welcomed by the majority of family lawyers, Justice Secretary David Gauke has announced plans to introduce no fault divorce and launched a consultation on reforming the divorce laws that are almost fifty years old.

The consultation follows a successful campaign led by Resolution, whose members are family lawyers and other professionals committed to the constructive resolution of family disputes, and the recent Supreme Court case of Owens v Owens.  In Owens v Owens it was held that Mrs Owens must remain unhappily married to her husband until his consent is no longer required, after it was decided that she had failed to establish that Mr Owens had behaved unreasonably.  In reluctantly coming to their decision, the Supreme Court noted that it was for Government and not the Courts to change the divorce laws and they have acted quicker than perhaps expected.

The introduction of no-fault divorce would remove the need for the divorcing couple to have been separated for at least 2-years or for one of them to allege fault in their petition.  It is proposed in the consultation that the current law be replaced by a notification process that the marriage has irretrievably broken down.

Presently, a party must prove one of the following:

  • Adultery
  • Unreasonable Behaviour
  • Desertion for more than 2 years
  • Separation for two years of more with the other party’s consent
  • Separation for five years or more without the other party’s consent

The changes being proposed are welcome from this firms’ perspective as requiring one party to apportion blame as under the current law can raise the level of conflict between the parties in an already difficult and emotional situation. This often results in discussions on important issues, such as dividing the parties’ assets and agreeing suitable arrangements for their children, being unnecessarily confrontational.

The Justice Secretary noted that almost 110,000 couples divorced last year while “constrained by a requirement in place for nearly half a century”, he added: “When a marriage has irretrievably broken down, the law should not frustrate achieving better outcomes, especially for children”.

Law Society president Christina Blacklaws said: “Making couples attribute fault in order to end their marriage can escalate the differences between them in an already charged situation so we welcome news the Ministry of Justice is to consult on proposals to update the divorce law. It’s time to bring this law into the 21st century to reflect the society we live in and we look forwarding to working with government to ensure the reforms are fit for purpose”.

For further information or guidance, please contact a member of our Family Team who will be happy to assist.

Luke Jenkins