Amidst the clamour of Brexit, the small voice of calm has just emerged in the shape of much-needed reform of our divorce laws.

In September 2018 I reported on the unsatisfactory outcome of the Tini Owens case when the Supreme Court refused to grant her a divorce because her allegations of ‘unreasonable behaviour’ were insufficiently legally robust to prove irretrievable breakdown.  At the time of the ruling, the members of the Supreme Court expressed their considerable concern at the outcome and called on Parliament to change the law, adding their voice to a growing number of individuals and campaigning bodies seeking change.

Anachronistic divorce laws

Before this case threw the incompatibility of the current divorce laws with modern marriage into stark relief, Parliament was not minded to reform what many legal professionals felt was becoming increasingly absurd – the requirement to apportion blame in a situation where a marriage had just run out of steam. The history of divorce law shows an inherent reluctance on behalf of legislators to accept that marriage is not always for life which has, in many cases, led to unnecessarily messy and damaging divorces. This anachronistic attitude will soon be a thing of the past: following the Owens’ case, Justice Secretary, David Gauke, consulted on no-fault divorce in autumn 2018 and put the Divorce, Dissolution and Separation Bill before Parliament in June this year. However, in another twist in the tail, the Bill has been dropped following Parliament's suspension in advance of the Queen’s Speech on 14 October 2019.  This means it will have to be reintroduced from scratch in the new Parliament and Parliamentary scrutiny will have to start anew. 

Divorce should be orderly

Although the ground for divorce will remain ‘irretrievable breakdown’, couples will have to provide a statement as evidence that the marriage is over, rather than relying on one of five facts to prove the case.  The two-stage process, namely the decree nisi and the decree absolute, will remain; couples can apply jointly, as well as individually, to start divorce proceedings; a divorce will no longer be able to be contested; and the whole process will take a minimum of six months to complete so that both parties have sufficient time to reflect fully on their course of action. This approach, the government believed, should allow couples to reach agreement in an orderly fashion, reducing the acrimony and hostility often engendered by the current system.

Changes are welcome

Despite the demise of the Bill, it had considerable cross-party support and there is every reason to hope that it will be included in the Queen's Speech. The changes the Bill seeks to introduce are to be welcomed wholeheartedly: too often have we seen divorce proceedings deteriorate from a desire on both sides to end a marriage amicably, to a hostile stand-off caused by the requirement to find ‘fault’ in order to expedite the divorce. We know from experience what a deleterious effect this has on children who are often caught in the cross-fire. Inevitably these proposed changes are already drawing considerable criticism from those people who feel that they will further undermine an institution already under pressure. Accusations that making divorce easier will lead to ‘throw away’ vows are groundless: only a tiny number of people enter marriage on a whim – most take their promises seriously. People are living longer, expectations change over time, and some married couples find that their lives diverge to the point where remaining married is no longer an option. Ending a marriage is hard – but no one should be penalised for doing so.

About the author

Justin Creed Head of the family team

Justin is a family and divorce lawyer, experienced in all aspects of family, divorce & matrimonial law. As a qualified collaborative lawyer and a member of Resolution, he actively seeks the resolution of disputes without involving the courts.