The government today signaled a long-awaited reform of divorce laws by potentially removing the element of fault from the process.
Justice secretary David Gauke confirmed his intention that couples wishing to divorce should benefit from a less confrontational process under proposals subject to consultation. A new notification process will allow people to notify the court of the intent to divorce, whilst removing the opportunity for the other spouse to contest it.
Other proposals include retaining the sole ground for divorce: the irretrievable breakdown of a marriage, and removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
Gauke said: ‘Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples. That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future.’
The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute). Ministers say this will allow couples ‘time to reflect’ on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.
Changes to divorce laws have long been campaigned for and were brought into focus by Owens v Owens earlier this year, when the Supreme Court ruled that a 68-year-old woman should remain married to her husband against her wishes.
The Family Law Act 1996 allowed for no-fault divorce provided couples had taken part in compulsory information meetings. However, the legislation was not commenced by the Labour government that took office in 1997.
At present, divorcing couples are forced to blame each other for the marriage breakdown on the grounds of ‘unreasonable behaviour’, adultery or desertion, or prove they have been separated for a minimum of two years – even if the separation is mutual. If the divorce is contested, and a spouse cannot prove ‘fault’, then couples currently have to wait five years before a divorce is granted.
Mark Harper, partner at London firm Hughes Fowler Carruthers, said: ‘It has taken 22 years since the last unworkable no-fault divorce law for the government to accept the need for further reform. ‘This will save 65,000 or more divorcing couples each year from having to prove fault to get a divorce, which will mean a better and more amicable start to those proceedings.’
The consultation closes on 10 December.