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Unlike other legal matters, the issue of divorce is incredibly contentious. Straddling two very different worlds of civil and religious law, marriage and its dissolution spark strong reaction from all corners. A sacred institution, detractors of the proposed change have argued that a reduction to the burden of proof would diminish the efficacy of divorce proceedings and make it easier for couples to end their marriage.
Under proposed changes, there would be two substantive changes to current law: firstly, the government proposes that the courts move away from a system that requires couples provide the court with reasons for the breakdown of the marriage removing the need to cite particular blame. In addition, the government proposes that instead of having to acquire consent from their spouse or courts, couples or one partner could give notice of their intent to divorce stating their belief that the marriage had broken down and set divorce proceedings in motion... This reform comes in light of the Tini Owens case, where Ms Owens divorce was blockaded by her husband. As a result, the government reasons that if one spouse has concluded that the marriage is over, then the legal process should respect that decision and should not place impediments in the way of a spouse who wants to bring the marriage to a legal end.
The landmark decision of the Supreme Court denied Tini Owens divorce and freedom from her loveless marriage to Hugh Owens. The court found that she did not have reasonable grounds to end her marriage despite having lived apart since 2015. Ruling that unhappiness is not a cause for divorce, the Supreme Court ‘reluctantly’ decided that Owens must remain married until 2020. While detractors would call the move towards no-fault divorces as an easy way out for flaky marrieds, the reform will go some way towards building a process that doesn’t demand acrimony. While commentators have suggested that no-fault divorces will make it more likely that people will separate, the reality of no-fault divorces will make it easier to manage separation with as little conflict as possible and reduce the probability of a court hearing.
In 2012, adultery and unreasonable behaviour was cited in 72,000 divorces. With blame belying the current system, pundits believe that a no-fault system will help ease the pressure of what has been dubbed the ‘blame charade’ and empower couples to exit their marriages without unnecessary antagonism.
What do legal professionals say?
In a statement to The Guardian, Christina Blacklaws, Head of the Law Society, praised the move: ‘Making couples attribute fault in order to end their marriage can escalate the differences between them in an already charged situation. So, we welcome news the Ministry of Justice is to consult on proposals to update the divorce law. It’s time to bring this law into the 21st century to reflect the society we live in and we look forwarding to working with Government to ensure the reforms are fit for purpose.’ Justice Secretary David Gauke spoke in concert with campaigners, denouncing the current system as ‘not fit for use’, and out of step with 2018 Britain. In a statement to The Times, Gauke conveyed his growing consternation: ‘I am ‘increasingly persuaded’ of the need for reform of the divorce laws.’ – he continues ‘The more I look at it the more I am concerned that the current system does create a degree of unnecessary antagonism in an already difficult and sensitive set of circumstances. Particularly when there are children involved, that’s absolutely what we don’t want to do.’
There’s little doubt that this move will radically modernise the family law system and inculcate a new culture for divorce proceedings. Divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both partners on a level footing having come to a mutually agreed upon conclusion. The move will prove significant for an already busy family court system by removing acrimony which can often prove complex and lengthy. This will also help the government achieve their goal of helping more people resolve their problems outside of the courts. By offering couples a no-fault pathway, divorce proceedings are radically simplified and will reduce the time spent in limbo and enable very junior lawyers to supervise in straightforward divorce cases.
Removing bureaucratic barriers to divorce proceedings is a monumental step forward for both divorcees and the family courts. Returning a degree of agency to individuals going through a divorce, the introduction of no-fault divorces not only provides couples with greater autonomy over their separation but removes the state from deciding on what terms a partnership may end. While there is still little certainty that this consultation will be ratified by government, this is an important move towards modernisation and one which will be welcomed by many legal professionals.
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