Divorce after Owens: no-fault and online

Modern technology and a high-profile divorce case have triggered long-overdue changes in divorce law and process, explains Nicole Phillips

The divorce laws of England and Wales have passed their 50th birthday and have not aged particularly well. 

Most processes today have been impacted to some extent by technology given the huge advances that have been made, but until very recently the same could not be said for the process of obtaining a divorce. 

The requirement for those in need of a divorce was to complete a divorce petition in paper form which then had to be lodged with the Family Court by hand or post. But for the introduction of Latin terminology, the subsequent stages of the divorce process are no less archaic. 

The decree nisi stage is a paper exercise that involves completing two (not entirely straightforward) forms, and again lodging these with the Family Court. A decree nisi (from the Latin nisi meaning ‘unless’) is a court order that will come into force at a future date unless a particular condition is met. 

In the context of divorce, the decree takes effect unless the other party to the divorce shows that it should not. The spouses are notified in advance of the day upon which decree nisi will be made. 

The district judge will then (literally) pronounce decree nisi in open court. In England and Wales, the minimum interval between the granting of decree nisi and the granting of decree absolute is six weeks (as amended by the Family Law Act 1996). 

The aim was to give people some breathing space and provide time for reflection. In practice, the courts use an interval of six weeks and one day. 

Once the six-week period has elapsed, another form must be completed and lodged with the Family Court to apply for decree absolute. This is the final stage of a divorce which legally dissolves the marriage. 

Going paperless

In this modern age in which we manage so many aspects of our lives with the click of a button, it is not surprising that many clients are left baffled by the current procedure. 

However, thanks to the courts modernisation programme and the work of HM Courts & Tribunals Service (HMCTS) and the President of the Family Division, people can finally apply for a divorce from the comfort of their own laptops and tablets – 28 years after the birth of the world wide web. From mid-2018, litigants in person have been able to issue divorce petitions online; and around 35,000 have done so far. 

This represents 55 per cent of divorce petitions issued by litigants in person during the past 10 months. The rate at which paper divorce petitions were returned due to errors was 40 per cent and the rejection rate for errors in online petitions is currently 0.4 per cent. 

It is anticipated that the online divorce procedure will be rolled out to solicitors in due course. Cost and efficiency savings will clearly be made – and the divorce process is finally being brought into the modern age. 

Ground for divorce

As well as understanding the process to getting a divorce, there are also certain criteria that must be met. Part 1 of the Matrimonial Causes Act 1973 sets out the basis for divorce. 

There is only one ‘ground’ for divorce under English law which is that the marriage has irretrievably broken down. However, there are five ‘facts’ that may constitute this ground:

• Adultery - There is surely something wrong with our divorce laws when family lawyers are frequently telling their clients that adultery is considered the ‘nice’ and most straightforward route to a divorce. I wonder what the critics of a non-fault system make of that? Where a divorce petition is based on adultery, and provided the other person admits the adultery, it is a simple case of recording that the adultery took place. There is no need to enter into a detailed blame game so adultery (if applicable) is, ironically, often the most civilised way to get yourself a speedy divorce. 
• Unreasonable behaviour – This is the most common fact relied on. The petition must set out a series of allegations that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them. There is no doubt that unreasonable behaviour petitions often have the effect of exacerbating conflict between couples, however anodyne solicitors encourage their clients to make their examples of unreasonable behaviour. 
• Two years’ separation – To rely on this fact, both parties must consent and the parties must have lived separate lives for at least two years prior to the presentation of the petition. 
• Two years’ desertion – This fact is rarely used. 
• Five years’ separation – The consent of both parties is not required to rely on this fact. 

However, all this is set to change. In the case of Owens v Owens [2018] UKSC 41, the petitioner Tini Owens lost her case in the Supreme Court in which she said her marriage to Hugh Owens had irretrievably broken down. 

Tini’s failure to convince a court that she had fulfilled the legal criteria to get a divorce attracted widespread media attention and shone a light on our antiquated laws. 

The case demonstrated that the current law can operate to trap people in unhappy marriages if, like Tini, the other spouse defends the petition and the petitioner cannot point to behaviour which is deemed sufficiently unreasonable by the court. 

Ironically, Hugh’s dogged determination to exercise his ability to force Tini to stay married to him generated the publicity and political leverage required to effect change; the change being to remove that ability entirely. 

I remember listening to an episode of BBC Radio 4’s Moral Maze called “The Institute of Marriage” in December 2017. 

When presenter Paddy O’Connell introduced the arguments against the introduction of no-fault divorce, he made this comment: “What can be worse for morality than the concept of no blame, no fault, reducing marriage to another choice on the relationship buffet; keep trying until you find something you like.” 

The emphasis placed on the ability of the divorce process to strengthen relationships and incentivise people to stay married seems completely misguided. 

I am not saying that divorce is a cause for celebration, but the idea that people’s broken relationships will somehow be fixed if we make the divorce process a difficult, fault-based and expensive one is risible. 

An online process

Interestingly, while the proposed introduction of no-fault divorce attracted a great deal of media attention and public debate, the introduction of an online divorce process slipped through without much comment.

The critics of no-fault divorce lament the prospect of divorce becoming a simple, hassle-free exercise because they feel it will undermine the sanctity of marriage. 

I wonder if their attentions were misplaced: might the change in procedure from paper to digital actually have a greater practical impact by making a divorce simpler and easier to obtain than a change in the laws themselves?

Family lawyers have been campaigning for change for decades, but what was really needed was a high-profile case through which the archaism of our current law is clearly demonstrated.

That arrived in the form of Owens. The media attention was sufficient to capture the attention of the public whose response was sufficiently clamorous to finally pique the interest of the politicians. 

Then, on 9 April 2019, the government announced that it will introduce legislation to end what it terms an “unnecessary blame game”. 

This decision follows a public consultation in which family justice professionals and those with direct experience of divorce voiced their support for reform. It is expected that the new legislation will be introduced when parliamentary time allows. 

Irretrievable breakdown of a marriage or civil partnership will be retained as the sole ground on which divorce may be granted, however, there will no longer be a requirement to evidence one of five facts. 

There will also be provision for joint applications so that one person does not need to divorce the other: instead both parties can request a divorce. Also, the ability to contest divorce proceedings, as in the Owens case, will be removed. 

So, in one fell swoop our divorce laws are getting a complete revamp in terms of both process and substance – not a day too soon in my view. 

Nicole Phillips is an associate at Family Law in Partnership flip.co.uk