A piece by Frances Gibb, Legal Editor, in today’s Times:
Fault-based divorce is set to be scrapped as the biggest shake-up of family laws in 50 years seeks to end the “blame game” between couples.
Spouses would also lose the right to contest the breakdown of a marriage under plans being drawn up by David Gauke, the justice secretary.
The proposal fulfils a key demand of Family Matters, a campaign begun last year by The Times and the Marriage Foundation urging reform of divorce and other family laws.
At present a spouse who wants to file for divorce must either provide evidence that their partner has committed adultery, behaved unreasonably or deserted, or wait two years if both sides agree or five if they do not.
News of the consultation paper, which is being finalised, leaked amid fears in Whitehall that it could run into opposition within some quarters of the Conservative Party and the church.
A Westminster source said that “not everyone will be in favour” and added that “releasing the proposals now could be a way to test the water”. The sole legal ground for divorce would remain irretrievable breakdown but couples would no longer have to cite one of the grounds to justify it.
A time frame ensuring that the process could not take less than six months is being considered to meet critics’ concerns that reform would lead to a rush of “quickie” divorces.
Sir Paul Coleridge, chairman of the Marriage Foundation and a former family High Court judge, said: “This is a development that must be resoundingly welcomed by all of us who know the current divorce law is a fake fault system, which drives people to commit perjury on a wholesale basis if they are not prepared to wait to divorce for two years or longer.
“Now we must hope the government will expand this consultation to include the other areas of family law highlighted by the Family Matters campaign, which also cry out for review and reform.”
However, he pointed out that the move would be “scarcely shatteringly radical, given that parliament passed the law abolishing fault-based divorce in 1996 and then the government of the day failed to implement it”.
Sir James Munby, who has just stepped down as the most senior family judge in England and Wales, has said that the present system involves hypocrisy and has a “lack of intellectual honesty”.
A recent case at the Supreme Court highlighted the issue and drove the campaign for reform. Tini Owens, 68, from Worcestershire, who wanted to divorce her husband of 40 years, was told that she must stay married until 2020 after he refused to consent to the divorce. By then five years will have elapsed and they can divorce on grounds of separation without consent. She said she was devastated by the decision, which would keep her “locked” in what she had described as a “loveless and desperately unhappy marriage”.
She had cited 27 examples of what she called unreasonable behaviour but the lower courts, upheld by the Supreme Court, said that she had failed to show that the marriage had “irretrievably broken down”. The justices expressed “unease” and Baroness Hale of Richmond, the court’s president, said that the case was troubling.
There are 100,000 divorces in England and Wales every year and two thirds are granted on the basis of an allegation of adultery or unreasonable behaviour.
Divorce levels fluctuate. In 2016 the number was up by nearly 6 per cent on the previous year, a total of 106,959 divorces between couples of the opposite sex, but the long-term trend is downwards.
Lord Mackay of Clashfern, the former Conservative lord chancellor whose Family Law Act 1996 scrapping fault-based divorce was enacted but never brought into force, welcomed the news. “The present divorce ground of unreasonable behaviour requires allegations that are hardly ever challenged and often exaggerated by one spouse against the other, which tends to exacerbate the breach of relations between them. Where there are children, it also renders more difficult agreeing arrangements for them. In 1996 parliament passed an act to abolish this requirement. I would be glad that it may happen now.”
Nigel Shepherd, chairman of the 6,000-strong family lawyers group Resolution, said: “This has the potential to be a landmark moment for divorce law in England and Wales.”
Lady Hale said this year that reforming divorce law to remove fault would strengthen the institution of marriage rather than undermine it.
The Ministry of Justice declined to comment.
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