Family lawyers have overwhelmingly welcomed the news that the government intends to introduce no-fault divorce laws.
This decision has been a very long time coming. The Major government intended to introduce no-fault divorce laws in 1996, but the legislation passed at the time was not particularly well drafted and difficulties with piloting part of the new procedure led to the Blair government deciding to indefinitely suspend implementation of the new law. I recall welcoming that decision at the time, not least because I considered the new law to be a dog’s breakfast, and we were promised that the issue would be given further consideration. Successive governments then appeared to forget about the issue and the law was quietly abolished in 2014. Therefore, couples who wish to divorce have had to continue to rely on legislation which is now half a century old and is simply no longer fit for purpose.
The existing law does nothing, but add additional and unnecessary conflict where plenty already exists. The need to make unpleasant allegations about your spouse in order to seek a divorce arguably makes the divorce more likely; you are less likely to reconcile with your spouse after your spouse has had to put forward a divorce petition containing allegations that you have behaved inappropriately. There is absolutely no evidence to show that introducing no-fault divorce will save marriages that have broken down irretrievably, nor that it will cause more marriages to break down. No-fault divorce is not about making divorce easier; it is about removing conflict and allowing the parties to divorce with dignity.
Resolution, which represents a huge number of family solicitors in England and Wales, has been campaigning to change the law for some time. The need for reform received considerable welcome publicity following the high-profile case of Owens v Owens where Mrs Owens was unable to obtain a divorce on the grounds that her marriage had irretrievably broken down due to her husband’s behaviour. The husband’s success at trial took the legal profession somewhat by surprise. Defended divorces are extremely rare. Most years, there are about 20 defended divorces which go to trial; there were about 110,000 divorces in England and Wales last year which shows how rare it is for divorces to be defended. It is even rarer for a respondent to successfully defend a behaviour divorce; Mr Owen is the only respondent to be successful in recent memory. Mrs Owens appealed without success to the Court of Appeal and then the Supreme Court. The appellate courts were sympathetic to her, but decided that they could not overturn the decision of the trial judge as (and I read between the lines here) while they would not have come to that decision themselves, the decision was within the discretion of the trial judge to make.
The Times joined the fray at this point and started campaigning for no fault divorce to be introduced. Perhaps unsurprisingly, The Times has sought to take credit for success in persuading the government to change the law. No doubt the publicity that The Times gave to this issue helped, but the real credit should go to Resolution.
Some credit should perhaps also go to Mr Owens, albeit perversely. His frankly questionable decision to defend the divorce led to this issue receiving enormous publicity. I do not know what Mr Owens’ reasons were for defending the divorce, other than what appears in the judgments, but if he felt that he was taking a stand against “easy” divorce, then he failed dismally. His victory was at best Pyrrhic (Mrs Owens should be able to seek a 5 years’ separation divorce next year, if she is unable to obtain a divorce under the new law before then), and his stubbornness has helped lead to a situation where no-fault divorce will be introduced.
Of course, I’m being somewhat mischievous by giving any credit to Mr Owens. In truth, that credit belongs to Mrs Owens who valiantly and, I suspect, at enormous expense pursued her divorce proceedings all the way to the Supreme Court. Had she not done so – had she given up after the trial judge had refused her divorce – then it may be that this issue would not have received the publicity than it needed.
The Nuffield Foundation has also this week released a report indicating that 14% of divorces in England and Wales each year experience delays because one spouse fails to respond to the divorce petition. Of those cases, nearly half failed to reach the Decree Nisi stage.
People who defend divorce proceedings are extremely rare; what is much more common is that the respondent will simply ignore the divorce petition when it arrives from the court. I often find that the petitioner in those circumstances loses heart and thinks that nothing can be done and that they require their spouse’s cooperation. They do not. If the divorce is on the basis of two years’ separation and the respondent will not give the necessary consent to divorce, the divorce petition is dead in the water. Similarly, an adultery divorce cannot proceed without either a written admission of adultery by the respondent or, less commonly, some kind of proof. However, behaviour and five years’ separation divorce proceedings can go ahead where the respondent fails to cooperate.
In those circumstances, all we need to do is to satisfy the court that the respondent has received the divorce petition and has had an opportunity to defend. The rules say that the respondent must file an acknowledgement of service within seven days of service. If the respondent simply ignores the divorce petition and does not file an acknowledgement of service, then the petitioner’s solicitors can arrange for the respondent to be personally served with the divorce papers by a process server (who then provides a statement of service confirming that the divorce papers have been delivered to the respondent), Alternatively, if there is some other evidence that the respondent has received the divorce petition, the petitioner can apply to the court for an order that service of the divorce petition be deemed to have taken place.
If the respondent then still fails to file an acknowledgement of service (or if he or she files an acknowledgement into services filed stating an intention to defend, but then no formal Answer is filed), then the petitioner can apply for the decree nisi and the divorce can go ahead.
We still don’t know precisely what form the new no-fault divorce laws will take or what procedure will be required, but the changes should hopefully make the need to take such steps less common. All the evidence from countries where they have introduced no-fault divorce shows that there is no increase in the divorce rate, apart from a small initial spike in divorces by people who been waiting for the new law to be introduced. No-fault divorce is not about making divorce easier; it is already easy to divorce. Its aim is to reduce the level of unnecessary hostility in a divorce. Removing the necessity to make unpleasant allegations about your spouse will hopefully also encourage spouses to cooperate about divorces or provide fewer opportunities for them to slow down the process.
9 February 2019