We don’t need new laws for no fault divorce – for the simple reason that we already have it

Dec 13, 2017 by

by Joe Robertson, Conservative Home:

Divorce law reform is back on the agenda, owing largely to the case of Hugh and Tini Owens which is due to be finally decided by the Supreme Court. Mrs Owens is seeking a divorce based on her husband’s alleged unreasonable behaviour. Mr Owens does not accept that he has been unreasonable, and the courts have so far agreed with him. The family court described his behaviour as, “the kind to be expected in marriage.” Unusually in this case, however, where many husbands might nevertheless understand that the marriage is over and agree to a separation divorce by consent, Mr Owens does not and will not. Instead, he hopes the parties still have a “few years to enjoy” together.

This is an unusual case and has coincided with, or perhaps prompted, calls for wider family law reform including from the judiciary. Lady Hale, President of the Supreme Court and the most senior judge in the land, has identified three areas ripe for reform: no-fault divorce, limiting spousal maintenance for life and financial protection for unmarried couples. A fringe panel event at 2017 Conservative Party Conference promoted no-fault divorces with much enthusiasm: however, the need for a new statutory divorce regime is being overstated and the dangers glossed over.

There are currently five statutory reasons why a divorce can be granted in England and Wales. At least three of them – arguably four – are already non-fault based: two years’ separation by consent, five years separation and desertion. The fourth – adultery – is also technically a question of fact rather than fault. The law provides no scope for the parties to argue why the adultery took place and whether it was reasonable. If adultery took place a divorce can be granted regardless of the circumstances that led to it.

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