‘Divorce on demand’ reforms will scrap the need to blame either husband or wife for marriage split

Divorce laws are undergoing a radical overhaul to try to limit the blame and bitterness of marital break-up.

The shake-up – the biggest in 50 years – will sweep away the legal principle that one partner should usually be identified as at ‘fault’ for a split.

The three grounds for an at-fault divorce – adultery, unreasonable behaviour and desertion – will be axed. ‘Irretrievable breakdown’ becomes the sole reason and it will take just one party to state that a marriage is over.

The legal right for a husband or wife to contest a divorce will also be dropped.

Drawn up by Justice Secretary David Gauke, the reforms follow years of campaigning by family lawyers and judges.

They have been trying to remove the idea of fault, which they say can increase conflict, reduce the chances of reconciliation and undermine relationships with children.

Divorce laws are undergoing a radical overhaul to try to limit the blame and bitterness of marital break-up. ‘Irretrievable breakdown’ will become the sole reason for an at-fault marriage and either party can state it 

Mr Gauke said: ‘Hostility and conflict between parents leave their mark on children and can damage their life chances. 

‘While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples. 

‘I have listened to calls for reform and firmly believe now is the right time to end this unnecessary blame game for good.’

Critics fear a rise in ‘divorce on demand’ and more couples splitting. Under existing divorce law, which dates from 1969, there are five grounds for divorce.

Two do not involve any claim of fault – a couple can be divorced after two years of separation if both agree, or after five years if just one wants a divorce.

At-fault divorces are more common, usually because they are quicker.

One ground is adultery, another is unreasonable behaviour, which can include financial irresponsibility, abuse, obsessive behaviour or refusing to have sex. A third reason, desertion, is used only rarely.

Under the new system, divorce will follow after one partner declares the marriage has irretrievably broken down. There will however be a cooling-off period of six months for ‘reflection and an opportunity to turn back’ before the divorce is finalised.

This is designed to give people a chance to change their minds.

Under the new system, divorce will follow after one partner declares the marriage has irretrievably broken down. There will however be a cooling-off period of six months for ‘reflection and an opportunity to turn back’ before the divorce is finalised

Under the new system, divorce will follow after one partner declares the marriage has irretrievably broken down. There will however be a cooling-off period of six months for ‘reflection and an opportunity to turn back’ before the divorce is finalised

The new law will allow a couple for the first time to lodge a joint application for divorce. It will keep the two-stage process, where a ‘decree nisi’ is followed by a ‘decree absolute’.

The right to contest a divorce will also go, meaning a husband or wife who wants to save their marriage will be unable to block the process.

Divorce rates are at their lowest in 45 years. But Whitehall assessments have warned that when the new law comes into operation there is likely to be an instant rise in divorce as couples rush to take advantage of it. After that, officials have said, ‘there is a possibility that it could impact rates’ and produce a long-term increase in the number of married couples splitting.

‘If you make something easier then more people will do it,’ said Simon Calvert of the Christian Institute think-tank.

‘The Government is going to make divorce easier so sadly, as has happened in every previous liberalisation of divorce law, the number of divorces will go up, as will the misery it causes to families.

‘This will increase the insecurity that many people feel within their marriages, since it will mean that one partner can simply resign from the marriage, leaving the other partner little time or opportunity to rescue it.’

Mr Gauke intends to bring a legislative bill before Parliament ‘as soon as time allows’. However its passage through Westminster may not be unchallenged.

In the mid-1990s John Major’s Tory government introduced a no-fault divorce bill which ran into a powerful backbench rebellion. Although eventually passed in 1996, the Family Law Act proved unworkable and was repealed by Tony Blair’s government.

Mr Gauke’s proposals were welcomed by Christina Blacklaws, president of the Law Society of England and Wales.

She said: ‘The Government’s decision to introduce a no-fault divorce will help to cut some of the conflict from what can be a highly stressful experience.

‘For separating parents, it can be much more difficult to focus on the needs of their children when they have to prove a fault-based fact against their former partner. Introducing a no-fault divorce will change the way couples obtain a divorce – for the better.’

Sam Hall, senior partner at Hall Brown Family Law, said: ‘The current system requiring fault is the equivalent of throwing a hand grenade into already difficult situation. This should remove an area of disagreement allowing couples to separate with a greater level of dignity and less conflict’.’

But the Campaign4Marriage group said the plans would only make divorce easier and more common. ‘It is an absolute disaster for the institution of marriage,’ a spokesman said. ‘All this will do is speed up the divorce process.’

Wife trapped in a loveless marriage 

The change in the law comes too late for Tini Owens, 68, who says she is trapped in a loveless marriage.

The Supreme Court backed Hugh Owens’ right to refuse her a divorce, meaning they must stay married for five years after separating before they can legally split. Judges ruled a joyless marriage is not adequate grounds for divorce if one spouse refuses to agree to it.

Mrs Owens, who is Dutch-born, and Mr Owens, 81, from Liverpool, married in 1978 and have two children.

The change in the law comes too late for Tini Owens, 68, who says she is trapped in a loveless marriage

The Supreme Court backed Hugh Owens’, 81, right to refuse her a divorce, meaning they must stay married for five years after separating before they can legally split

The change in the law comes too late for Tini Owens, 68, (left) who says she is trapped in a loveless marriage. The Supreme Court backed Hugh Owens’, 81, (right) right to refuse her a divorce, meaning they must stay married for five years after separating before they can legally split

The couple built up a £5million-a-year mushroom business but he was accused of putting work before home life, missing family events. He was described as moody and argumentative, and Mrs Owens increasingly ‘unloved, isolated and alone’.

Very unhappy, in 2012 she had a ten-month affair, and in 2015 filed for divorce. The case reached the Supreme Court last year. Lord Justice Wilson said they ruled against her with ‘great reluctance’ and said the law around ‘entitlement to divorce’ was a ‘question for Parliament’.

Divorce lawyer Ayesha Vardag said: ‘This kind of law has no place in a civilised society of equals. We do not allow forced marriage. How can we force continuation of marriage?’  

Analysis by Steve Doughty 

What happens now?

Under the current law, which is 50 years old, there are two ways of getting a divorce. One is to wait – a couple can be divorced after two years of separation if both agree, or after five years if just one partner wants a divorce. For a quicker divorce, husbands and wives have to say their partner is to blame for the end of the marriage, or that it is their ‘fault’.

What is a ‘fault’?

There are three ‘fault’ grounds for divorce: adultery, unreasonable behaviour, or desertion. In recent years unreasonable behaviour, which can involve abuse, withholding sex, drunkeness or drug use, recklessness with money or even obsession with a hobby, has been the most popular.

How long does divorce take?

At present, a couple must wait at least a year after their wedding before one can start the process by filing a divorce petition. After that divorce can be over in just a few months, but an average divorce takes longer than a year.

What does the new law do?

The idea of ‘fault’ goes completely, and instead there will be just one ground for divorce: irretrievable breakdown. Divorce will be granted at the request of just one spouse, although a new option of a joint application from both husband and wife will be made available.

Can I delay things?

No. At present a partner reluctant to divorce can spin out the process for five years by ‘contesting’ the petition, though this only happens in about one in every 50 cases. Ministers say the ability to contest a divorce is exploited by controlling and coercive abusers, but evidence for this is slender. In the new system, the right to contest a divorce will go.

Will divorce be quicker?

Under the new system couples will still have to wait a year after the wedding before asking for a divorce. After that point, there will be a new minimum waiting period of six months enforced between the divorce petition and the split being legally finalised. This is designed to give people chance to change their minds.

The end of bitter battles?

Ministers say the ‘outdated’ fault-based law encourages an ‘unnecessary blame game’ which creates or increases conflict between divorcing couples. Critics say this is nonsense, and the real cause of conflict between warring couples is the fact of the breakdown of their marriage, and then arguments over property, money and children. The legal system for dividing property and arranging care of children of divorced couples will be unaltered by the reforms.

Are children better served?

Ministers say that children are damaged by hostility and conflict between parents. However a large body of evidence says that children are most damaged by the break-up of their home and the loss of one of their parents. A report at the weekend by the Centre for Social Justice think-tank found that people whose parents parted before they were 18 were twice as likely to fail at school, end up homeless or go to prison compared to children from families that had stayed together. 

 

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