As an experienced family lawyer, I have dealt with many divorce cases over the years and being at the “coalface” I have seen first hand that our current divorce laws can make an already painful time even more difficult.
Under the current law in England and Wales, couples seeking a divorce must either be separated for 2 or 5 years or allocate blame for the breakdown of the marriage on the basis of their spouse’s desertion, adultery or unreasonable behaviour.
It has been widely acknowledged that such a process does little to minimise conflict between divorcing couples, makes it harder for professionals to help resolve matters in a constructive way and where children are involved ongoing conflict between parents can be particularly damaging.
The case for reform has been gathering momentum for some time. Part 2 of The Family Law Act 1996 would have introduced a “no fault” divorce but this was considered unworkable by the government at the time and was later repealed.
The widely publicised case of Mrs Trini Owens in Owens v Owens shone a light on the difficulties of a fault- based divorce when even though the Judge acknowledged the marriage had broken down, Mrs Owens was found not to have proven that her husband had behaved in such a way that she could not reasonably be expected to live with him.
Her appeals to the Court of Appeal and Supreme Court failed which meant that as the divorce was defended, she would be tied to a marriage that had broken down and would only be able to issue divorce proceedings in 2020 on the basis of a 5 yearseparation by which time,Mrs Owens would be 70 years old and Mr Owens 82 years old.
One positive outcome of the Owens v Owens decision is that following the decision of the Supreme Court rejecting her appeal and sustained campaign from Resolution (an organisation made up of legal professionals that advocate a constructive and non -confrontational approach to family matters), the government issued a consultation on its plans to reform divorce law in September 2018. The consultation closed in December 2018. In the ministerial forward, the Rt Hon David Gauke (Lord Chancellor and Secretary of State for Justice) stated:
“Divorce is never going to be an easy change for families. But the recent case of Owens v Owens has generated broader questions about what the law requires of people going through divorce and what it achieves in practice. When a marriage or civil partnership has broken down and is beyond repair, the purpose of the law must be to deal with that situation in the most humane and effective way possible.”
David Gauke has recently confirmed that he will bring in legislation to reform the divorce laws in England and Wales in the next session of Parliament. The proposed reform would remove the need to allocate blame for the breakdown of the marriage and simplify the divorce process so that separating couples would not have to wait for years to obtain a divorce.
I consider this to be a momentous step forward and in the words of David Gauke “when a marriage has irretrievably broken down, the law should not frustrate achieving better outcomes, especially for children”.