This morning, justice secretary David Gauke confirmed that legislation to allow “no fault divorce” in England and Wales will be introduced as soon as parliamentary time becomes available. So why is this announcement making the headlines?
At the moment, in order to get divorced in England and Wales the options open to couples who do not wish to lay “blame” at the other’s door can be a little drawn out and impractical. You can divorce your spouse if you have been separated for 2 years and the other party consents; or if you have been separated for 5 years or can prove desertion for a 5 year period where there is no consent.
If these time periods are not satisfied, then the options available are either adultery or by claiming that the other party has behaved in such a way that you cannot reasonably be expected to live with them
In a significant number of cases, in part for reasons for which I will come to below, couples do not wish to have to wait a minimum of 2 years to be able to divorce their spouse on consensual grounds. The knock on effect of this has been divorce actions in England and Wales being raised on the basis of “behaviour” or adultery (sometimes by agreement with the other side) in order to make progress. There has been a longstanding concern that the necessity to proceed in this way has caused unnecessary acrimony between separated couples who otherwise are relatively amicable, and that that in turn can have a detrimental effect on children of the marriage.
Whilst these are long-standing concerns which the government have been lobbied about for some time, the straw that broke the camel’s back however seems to be the much publicised case of Tini Owens, which we have blogged about previously. Mrs Owens’ “unreasonable behaviour” divorce was taken all the way to the Supreme Court with her husband successfully contesting that his behaviour was not such that she should be entitled to divorce him,. The parties having separated in 2015, under the current law Mrs Owens was forced into a situation where she will now not be able to divorce her husband until 2020, notwithstanding that the irretrievable breakdown of their marriage was evident to say the least..
So what are the changes? Whilst it appears quite difficult to get a clear steer on what exactly the new legislation will say, from what appears in the press this morning the proposals for change include:-
- Retaining irretrievable breakdown of the marriage as the sole ground of divorce.
- Replacing the requirement to provide evidence of a “fact” around behaviour or a period of separation, with there instead being a requirement to provide a statement of an irretrievable breakdown.
- Creating the option for a joint application for divorce as well as one party initiating the process.
- Removing the ability to contest a divorce.
There can be little doubt that when the legislation comes into force, this will represent a significant change for separated couples in England and Wales. But what of Scotland – are we likely to follow suit?
At the moment, it is difficult to say. Whilst our grounds of divorce follow (excluding desertion) the general pattern of the grounds in England and Wales, the significant difference is that since 2006 the time periods for “non-fault” divorce in Scotland are much shorter – one year’s separation with consent; and two year’s separation.
Whilst the proposals by the justice secretary will no doubt seem attractive, I think it would be questioned whether a change is required in Scotland. Statistics appear to suggest that only a very small proportion of Scottish divorces were raised on the basis of behaviour or adultery. Rather than this being a reflection of Scots being less acrimonious, it instead likely reflects that our systems are very different in respect of more than just the time periods necessary for a “non-fault” divorce.
In England, whilst of course parties can have discussions about financial provision at any time, any agreement between the parties requires to be reflected in an order from court which in turn requires to be ratified by the court. That process of ratification cannot be gone through until an action of divorce is raised. As such, for many English couples the raising of an action of divorce is necessary to make progress in terms of an overall resolution and implementation of financial and other matters arising from the separation.
In Scotland, a financial resolution is almost always reflected in a binding Minute of Agreement, which the Court does not need to have sight of. As financial provision must be dealt with either before or on divorce being granted, often by the time negotiations have concluded the anniversary of the separation will not be far away. It is therefore a combination of the differences in both our systems and our timescales that lead to there being very few “fault” divorces in Scotland. .
It will be interesting to see exactly what the new legislation south of the border looks like as and when it comes into force.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.