At fault on no-fault divorce

Supreme Court justice Lord Nicholas Wilson gave an interview to BBC Radio 4 last month. He was asked if the late Sir Nicholas Wall would have been disappointed that no-fault divorce is still absent in this jurisdiction. Lord Wilson admitted that he, Sir Nicholas, and indeed many other judges were disappointed that the 1996 attempt to eliminate fault-based divorce failed.

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. Twenty years on, where are we on divorce reform? Last November, Resolution members lobbied peers and MPs but pleas for divorce reform have sadly fallen on deaf ears.

House of Lords spokesperson Lord Keen of Elie, in answer to a written question, said that the government has no plans to change the existing law on divorce. Lord Keen added that the government is ‘considering’ what further reforms to the family justice system may be needed. However, his response is a brush-off to badly needed divorce and other reform.

The media recently reported a rare case of a defended divorce reaching the Court of Appeal. Apparently, judge Robin Tolson QC refused the divorce petition of Mrs Tini Owens, concluding that the behaviour of her husband, Hugh, was not sufficient to establish irretrievable breakdown of the marriage. Her counsel told the appeal court that Mrs Owens was a ‘locked-in’ wife. Judgment on her appeal has been reserved. Unless Mrs Owens is successful, she will have to wait until she has been separated from her husband for five years before getting divorced.

Over 200,000 people get divorced each year. They have to rely on a vehicle, the Matrimonial Causes Act 1973, which is over 40-years-old. Official statistics show that fault-based facts, particularly behaviour and adultery, are most commonly relied on year on year. Is it not time for change to modernise the system so one spouse does not have to blame the other without having to wait two or five years post-separation?

Without the judgment from the Owens case, we cannot know the facts or what the behavioural particulars were. This case is a reminder that a divorce petition is a pleading. Of course, the Law Society’s Family Law Protocol (fourth edition) says that petitioners should be encouraged only to include brief details in the statement of case to satisfy the court. They need to be effective and well-drafted, though. I fear that a good number of petitions my family law practice receives from other practitioners would not fare well if defended, because of their poor drafting.

I still come across some solicitors’ firms which seem oblivious of the existence of the protocol and its contents. Notifying the respondent or their solicitors of your intention to issue the petition in advance of doing so – unless there is good reason not to – can avoid rancour, reduce the risks of a defended divorce and save costs.

Going back to Lord Wilson’s interview, he also expressed disappointment that cohabitants had no rights on the breakdown of their relationships. The Office for National Statistics says that unmarried couples living together are the fastest-growing family type in the UK, increasing by just under 30% between 2004 and 2014. They now total some three million couples.

Ten years ago, the Law Commission’s recommended reforming the law for cohabitants. Successive governments have not pursued such a strategy. Lord Keen did not even specifically refer to the law on unmarried couples in his response to the written question put to him.

Until the government’s supposed consideration of the family justice system becomes tangible, I remain disappointed at the lack of much-needed family law reform both in respect of divorce and unmarried families.

Tony Roe is a family law arbitrator and principal of Tony Roe Divorce & Family Law Solicitors, Theale, Reading. He is also a member of the Law Society’s Family Section and Small Firms Division committees