This Commons Library briefing paper considers the current basis for divorce, arguments for and against the introduction of "no-fault" divorce, and the Government's proposals to reform the legal requirements for divorceJump to full report >>
Parts 1 to 6 of this briefing paper deal with the position in England and Wales.
The only ground for divorce is that the marriage has irretrievably broken down. The court cannot hold that the marriage has broken down irretrievably unless the petitioner satisfies the court of one or more of five facts, three of which are fault based (adultery, behaviour, desertion). Two of the facts relate to periods of separation – two years if both parties consent, and five years without consent.
In 2016, a judge in the Central Family Court refused to grant Mrs Owens a decree nisi of divorce, even though he found that the marriage had broken down. The husband had defended the divorce – defended divorces are rare in practice. The judge found that Mrs Owens had failed to prove, within the meaning of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him.
Both the Court of Appeal in 2017, and the Supreme Court in 2018, dismissed Mrs Owens’ appeal. Judges in both courts said that it was for Parliament and not judges to change the law. In the Court of Appeal, Sir James Munby, then President of the Family Division, spoke of an aspect of the law and procedures being based on “hypocrisy and lack of intellectual honesty”.
Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. In 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. The relevant provisions in Part 2 have now been repealed.
In July 2018, Baroness Butler-Sloss (Crossbench) introduced a Lords Private Member’s Bill, intended to require the Lord Chancellor to conduct a review which would include considering whether the law ought to be changed so that irretrievable breakdown of a marriage or civil partnership is evidenced solely by a system of application and notification. This Bill has not made any further progress.
Among others, some senior members of the Judiciary; the Family Mediation Taskforce; Resolution (the national organisation of family lawyers); and The Times newspaper have called for the introduction of no‑fault divorce.
In October 2017, the report of a Nuffield Foundation funded research project, led by Professor Liz Trinder of Exeter University, recommended removing fault entirely from divorce law and replacing it with a notification system. The report concluded that it was time for the law to be reformed to address the mismatch between law and practice.
Advocates of this form of divorce speak of reducing the conflict which can be caused by allegations of fault. In some cases, the assertion of fault is considered to be a “charade”.
The arguments of those who oppose the introduction of no-fault divorce include that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown.
In September 2018, the Ministry of Justice published a consultation paper, Reform of the legal requirements for divorce. The consultation closed on 10 December 2018. It asked for views on replacing the current requirement to establish one or more of the five facts to show that a marriage has broken down irretrievably, with a process based on notification. In his Ministerial Foreword, David Gauke, Lord Chancellor and Secretary of State for Justice, referred specifically to the Owens case, and said that it had generated broader questions about what the law requires of people going through divorce and what it achieves in practice.
On 9 April 2019, the Government published its response to the consultation. David Gauke announced that legislation would be introduced, as soon as Parliamentary time allows, to change the law by removing the legal requirement to make allegations about spousal conduct or to have lived separately for up to five years. He said that the Government would continue to support marriage but that the law should allow people to move on constructively when divorce is inevitable, and that this would benefit children.
In short, the Government proposes to:
Part 7 of this briefing paper deals with the position in Scotland. Matters relating to marriage and civil partnership are devolved.
The basis for divorce under the Divorce (Scotland) Act 1976 was originally very similar to that in England and Wales. The irretrievable breakdown of marriage had to be evidenced by one of five facts, including two years separation with consent and five years separation without consent. However, the Family Law (Scotland) Act 2006 reduced the separation periods from two years to one where there is consent, and from five to two years where the respondent does not consent. The ‘desertion’ fact was also removed.
A simplified (do it yourself) divorce procedure may be used with the no‑fault facts (there are also other qualifying criteria). This is now the most frequently used procedure.
Commons Briefing papers SN01409
Authors: Catherine Fairbairn; Cassie Barton