Article: Change is on the way!

Parliament is at last going to debate changing the divorce process to reflect views long-held by many family lawyers. Whilst this debate is long overdue, it is welcome.

Current basis for divorce

At present in England there is only one ground for divorce – that is that the marriage has broken down irretrievably. In order to prove this ground to a Judge, the petitioner (the person who starts the divorce) was to rely on one of 5 “facts”:

1. Their partner has committed adultery and they find it intolerable to live with them;
2. Their partner has behaved in such a way that they cannot reasonably be expected to live with them;
3. The parties have not been living as husband and wife for a period of 2 years or more and their partner consents to the divorce;
4. Their partner has a deserted them for a period of 2 years;
5. The parties have been separated for 5 years.

Nearly 60% of all divorce petitions issued in 2016 relied one facts 1 and 2 above. In other words, in nearly 60% of all petitions issued, one party took the blame for the breakdown of the marriage.

The issue

Currently, when everyone is hoping to resolve matters amicably in what is often the first formal contact made by one party or their solicitors, they are forced to suggest almost immediately that one party takes the blame for the breakdown of the marriage.

Problems arise from a combination of 2 factors. It is very rare that one party is entirely to blame for the breakdown of the marriage and in many break-ups; both parties accept that fact. However, making an amicable decision to end a marriage where neither party takes the blame would involve waiting for two years.

This may not seem like a great hindrance to the lawyers since the divorce is (normally) just an administrative process, however, it can be a difficult concept for the clients to accept or understand. The decision to end a marriage is, in almost every case, a difficult and fundamental step and having to revisit that decision and all the attached emotions in order to complete paperwork is simply not palatable. Many couples have been ruminating on a decision as to the future of their marriage for a considerable period of time, the idea of finally reaching a decision and being able to take no action is, understandably, difficult.

Married couples are faced with an unenviable choice: wait for a number of years before making any progress towards a legal separation or force blame on one party at the risk of adding acrimony to what is already a tense time.

The result in the majority of cases is a form of collusion. One party agrees to make relatively mild allegations against the other; the other party agrees not to defend the petition so long as they are not taken to have admitted anything that is written, and the divorce moves forward. It is essentially an agreement to mislead the Court as to the true nature of the breakdown of the marriage.

The government now appear willing to address this issue head-on and have relented to the ongoing calls for divorce to become a no-fault process, recognising the benefits that this will have for the individuals involved and, most importantly, the children of the family who are inevitably caught up in the issues.

The arguments against change

It may seem obvious that there should be an option to end a marriage by agreement and without antagonism. However, what is crucial for many is that marriage as an institution is protected. It should remain a decision to be considered carefully and as a lifetime commitment. The concern is that if there is no need to cast blame then it becomes significantly easier to bring marriage to an end.

To my mind, that underestimates people as a whole and misunderstands the effect of the current process. If there is a “spike” in petitions for divorce following a change in the law, surely that is because people have felt trapped in an unhappy marriage, not because they have suddenly lost respect for their marriage vows, their children or immediately forgotten the nature of marriage.

Anyone who takes the step of seeing a solicitor will be advised that the current law is extremely unlikely to be a barrier to pursuing a divorce. The recent case of Tini Owens which garnered significant attention in the press is in a very small minority of cases where one party actually decides to defend a divorce petition and wants to stay married, despite being given the very clear message from their spouse that the marriage is over.

The proposals for change

They are essentially as follows:

• The option to allege fault in a divorce will be taken away entirely.
• The option to defend the divorce will be taken away entirely.
• The process would be one of notifying the Court that the marriage has broken down irretrievably.
• After a fixed period of time following this notification, either party will be able to apply to “finalise” the divorce. They can also apply jointly. This will be the second (and final) stage of the process. The plan is to consult on the length of time necessary but 6 months is currently being suggested.

There may be some who view the decision to take away the option of alleging fault altogether as too drastic. Some people seeking a divorce may feel very firmly that their spouse is to blame and that this should be reflected in the proceedings. However, filing a petition is unlikely to provide any sort of closure from issues arising from the marriage and, given all the harm and difficulty it can cause, it is on balance, in my opinion, preferable to remove the option altogether.

Whilst the government currently has plenty on the legislative agenda, it is hoped that momentum for these changes will continue to build. It is welcome news that Parliament will debate the changes in the May 2019 session. For almost all who practice in this area, it is an obvious change and one we want sooner rather than later.

If you are currently going through marriage difficulties and wish to discuss your options please contact any member of the Russells family and matrimonial team.