Law reform: UK divorce regime ‘very troubling’ and lagging behind many jurisdictions

Meg Weddle, Senior Content Editor

Tini Owens’ original petition for divorce, citing her husband’s ‘unreasonable behaviour’ over their 40-year marriage, had been dismissed by the UK’s Family Court and Court of Appeal. They ruled that the examples given were not objectively bad enough to prove it was unreasonable for her to continue living with him.

The Supreme Court unanimously rejected her appeal on 25 July, stating that although the case was ‘very troubling’, it was not for them to change the law.

Calls for a move to a no-fault system have intensified as a result of the case, with the UK government, legal professionals and campaigners criticising the outdated nature of divorce law in England and Wales, where one spouse must satisfactorily demonstrate ‘fault’ against the other.

‘Removing fault-based petitions would better align current practice and the law, and ensure that England [and Wales] is less out of kilter with other, more enlightened jurisdictions,’ says Kerry Fretwell, a family law partner at Penningtons Manches.

Fretwell is also co-author of Escaping the labyrinth: the international divorce law barometer, which analyses the legal regimes of 20 jurisdictions to compare the ease or difficulty in obtaining a divorce. Published in May 2018, the report points to the advantages of no-fault divorce in a number of jurisdictions.

The UK Supreme Court has made a controversial ruling on the Owens v Owens case

In China, for example, divorces may be granted immediately following marriage, while in Russia there is no legal obligation to cite reasons for the marriage breakdown. In Argentina – which topped the barometer for ease of obtaining a divorce – a 2015 overhaul of the law means there is no provision to allow fault-based divorce applications, and a divorce can be applied for jointly or unilaterally.

But, according to the report, the UK’s convoluted regime is among the worst of the 20 jurisdictions assessed. Only three came out worse: the Philippines, where divorce is illegal; Israel, where divorce is governed by religious courts; and the United Arab Emirates, where fault must be proven and a court-appointed conciliator must attempt to reunite couples.

Under no-fault systems, divorce is possible if one spouse wants to end the marriage, and the accusatory nature of proceedings is avoided. It’s a far cry from divorce law in England and Wales, which has long been criticised for being overly complex, restricting personal autonomy and promoting acrimony.

‘I think there’s an inevitable need for some reform to the legislation, which is long overdue,’ says Gillian Rivers, former Co-Chair of the IBA’s Family Law Committee. ‘The law has not changed for over four decades. And, even accepting the [Matrimonial Causes Act] 1973 provision was a vast improvement on the previous legislation, this statute was never designed to make it easy to obtain a divorce. Unless couples can satisfy the relevant period of separation in order to “prove” their petition, they can only proceed on one of the three fault-based alternatives.’

The 1973 Act gives the option of married couples separating after two years with consent, or five years without. The Owens’ have been living separately since 2015, but Mr Owens’ took the unusual step of defending the divorce application – arguing that he did not want to be divorced from his wife. As a result of the Supreme Court ruling, Mrs Owens will now have to wait until 2020 to obtain the divorce.

Despite dismissing the appeal, the Supreme Court justices expressed significant disquiet over the ruling, with the Court’s President, Lady Hale, stating the case was ‘very troubling’. Her words echoed those of James Munby, President of the Family Law Division, who at an earlier appeal sharply criticised divorce law for being based on ‘hypocrisy and a lack of intellectual honesty’, but emphasised it is the responsibility of judges to apply the law ‘as they find it, rather than as they wish it to be’.

Following the ruling, the Ministry of Justice said it was ‘looking closely at possible reforms to the system’, recognising that ‘the current system of divorce creates unnecessary antagonism in an already difficult situation’.

Many family law experts believe new legislation that introduces no-fault divorces is the way ahead – and would avoid the needless conflict that’s often triggered by the fault-based system.

‘The concept of fault-based divorce entrenches the adversarial nature of divorce proceedings,’ says Stephen Denyer, a member of the IBA’s European Regional Forum Advisory Board. ‘In 2018, people should not be expected to have to criticise their partners to justify the breakdown of their relationship.’

The Law Society, alongside family lawyer organisation Resolution, promote a code of conduct focused on reducing conflict and confrontation in divorce proceedings. Both bodies have been vocal in their arguments that fault-based divorces undermine this process, as well as alternative avenues such as mediation.

‘There’s a very paternalistic attitude in this country to the breakdown of marriage,’ explains Rivers, a family law partner at Penningtons Manches. ‘Society has changed and we now need legislation that reflects that change.’