One step back for no-fault divorce?

Divorce and separation is often a time of conflict and distress. There are a lot of potential crises and issues to resolve for couples even where they have mutually agreed that their marriage is over. As Kara Swift wrote earlier this year, present divorce law makes things worse by forcing them to blame each other unless they can wait two years to get their divorce. Many of those working in the family law industry believe that the law needs to change to allow people to break up as amicably as possible without a two-year wait.

At the moment, the only ground for divorce is that the marriage has broken down irretrievably. This can be proved in five different ways but it is not possible for a couple to get a divorce without blame unless they have been separated for at least two years. For many, waiting two years to sort out their finances rules out this option. This means that they must record details either of their partner’s adultery or their unreasonable behaviour in order to proceed with the divorce, making an already difficult and stressful process even harder.

The Law Society’s Family Law Protocol encourages practitioners drafting such petitions to include brief particulars that are sufficient to satisfy the court. The Family Procedure Rules 2010 provide that the particulars must evidence the applicant is entitled to a divorce but should be as concise as possible. As part of the protocol, solicitors are also asked to provide the respondent with a draft copy of the petition with a view to agreeing the allegations of behaviour and minimising any conflict between the parties, rather at odds with the finger pointing encouraged by the current law.

‘Loveless marriage’

In February this year, the Court of Appeal heard an appeal by Tini Owens against the refusal of HHJ Tolson QC to grant her a divorce on the basis of the unreasonable behaviour of her husband. Mrs Owens set out in her petition that she felt ‘unloved, isolated and alone’. Mr Owens, however, denied that the marriage had broken down. The judge ruled against Mrs Owens, concluding that her 27 allegations were ‘of a kind to be expected in marriage’ and refused to grant a divorce petition despite the fact that Mrs Owens contended that there was ‘no prospect of reconciliation’.

The Court of Appeal then dismissed Mrs Owens’ appeal, which effectively means that she must remain married to her husband. The court acknowledged that the ruling left Mrs Owens ‘trapped in [a] loveless marriage’. Explaining the ruling, Sir James Munby, president of the Family Division, said: ‘It is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.’

He also acknowledged that ‘the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty’ and ‘the challenge for the divorce lawyer is… to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne it may be rejected by the court whereas if it is not anodyne enough the respondent may refuse to cooperate’. He even asked the question: ‘Is… the public policy which underlies our current divorce law still needed?’

Speaking immediately following the judgment, Resolution’s chair, Nigel Shepherd, said: ‘This judgement… absolutely underlines the urgent need for no-fault divorce. Nobody should be compelled to remain in a marriage against their will, yet judges’ hands are tied by the current divorce law… As the president of the Family Division rightly asks in the judgment, “ought the decision whether or not a marriage should be dissolved to be one for the parties which the state is not in a position to question?”… Owens v Owens must be the spark that ignites a fundamental change in our divorce law.’

New procedure

Resolution is proposing a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised. Divorce without blame was provided for in the Family Law Act 1996 but never enacted and the government’s own Family Mediation Task Force recently recommended it be introduced.

Divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both partners on a level footing. This will reduce the burden on the family court and help the government to meet its aim for more people to resolve their problems outside of the courts.

Helen Greenfield is a director at Family Law in Partnership

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