The end of the divorce “blame game”

Last week the government announced proposals to review the current divorce laws within the UK and consider introducing a new ‘no fault’ divorce. This should, in theory, make the divorce process less confrontational and should make the process of divorce much quicker, which will be a relief to those separating couples. It is expected that the new legislation will be introduced in the next session of Parliament, writes Rebecca Kocerhan.

Rebecca Kocerhan

Current Divorce Law

In current divorce law, under the Matrimonial Causes Act 1973, anyone seeking a divorce must show that the marriage has ‘irretrievably broken down’. This can only be established by one or more of the following five reasons:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation for more than 2 years (and both agree)
  • Separation for at least 5 years (other party does not have to agree)

The current divorce regime has been described as archaic and creates a blame culture between separating couples. Indeed, only one of the given reasons, separation for more than two years, seems to suggest a mutually agreed separation.

However, two years is a considerably long time to wait before applying for a divorce, hence the whole process can be very long and drawn out. This can often lead to the separating couples becoming even more fractured and may inevitably lead to a blame culture. This also delays any financial proceedings, which in turn can also lead to acrimonious relationships.

Owens v Owens [2018] UKSC 41

The review of current divorce laws was brought to the headlines following the unusual case of Owens v Owens [2018] UKSC 41 where Mrs Owen’s petition for a decree nisi was refused and dismissed on appeal at the Court of Appeal and Supreme Court. Mrs Owens applied for a decree nisi, declaring that the marriage had irretrievably broken down due to Mr Owen’s unreasonable behaviour.

At first instance, the Court found that the marriage had broken down, however dismissed the petition stating that the behaviour was not unreasonable but rather was ‘minor altercations of the kind to be expected in a marriage’.

Prior to this, it was assumed that the threshold for unreasonable behaviour was rather low, this being the most common reason for seeking a divorce. Nonetheless, this case demonstrated that, should a divorce petition be contested, which is very uncommon, the current law sets a higher threshold than first anticipated.

Mrs Owens appealed the decision which was dismissed at the Court of Appeal and Supreme Court. The Supreme Court judgment provided that, when seeking to rely on ‘unreasonable behaviour’ the petitioner must demonstrate not only that the behaviour meets the required threshold, but that this behaviour means that they also cannot reasonably be expected to live with the other party.

The Supreme Court recognised that in this instance, as it was apparent Mr Owens would not consent to the divorce by being separated for more than two years, the only possible route open to Mrs Owen’s was to wait until the parties had been separated for five years. The Court recognised the difficult situation Mrs Owen’s was placed in, however stated that it was for Parliament to change the law, not the Court.

Following this, in September 2018, the government published a consultation paper to consider current divorce law.

Looking ahead

The government is now looking at options of how to reform divorce law, focusing on; removing the need for couples to live separately before divorcing; the need to provide evidence of a spouse’s unreasonable behaviour or adultery; and removing the opportunity to contest the divorce. These new proposals should make the divorce process less hostile, as one party will not be seeking to blame the other for the breakdown of the marriage. Rather, as we all recognise, marriages do naturally come to an end, and it is about time the law acknowledged this rather than pin-pointing the reasons for the breakdown.

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Separations are difficult enough, and couples should not have to face the prospect of a protracted divorce process blaming one another for the end of the relationship.

It is hoped that following any revision of divorce laws, this will also lead to less separated couples contesting financial proceedings and private children act proceedings. The logic being that having a limited ‘blame culture’ upon separation, other matters should be able to be discussed openly rather than within the Court proceedings.

Only time will tell however, whether the proposals will have a positive impact in other family proceedings.  

Central Chambers has an excellent team of family counsel with expertise in divorce matters.

If you would like to instruct Rebecca Kocerhan, please contact the clerks’ room by by calling or by emailing them.