No More Adultery?

Recently we all became aware of leaked information regarding a planned consultation by the government to change the longstanding law in relation to the grounds for divorce.  More recently still, that position has now been made official and the Justice Minister has confirmed that there will now be a public consultation running to 10 December so that all interested parties can express their views.

As will be well known, it is still 1973 so far as divorce grounds are concerned.  There is one basis for divorce, and that is that the marriage has irretrievably broken down, but the routes for proving the same have remained unchanged – they are:

(a) Adultery;

(b) “Unreasonable behaviour”;

(c) Desertion for 2 years or more;

(d) Separation with 2 years or more when the other party consents to a divorce;

(e) Separation for 5 years or more.

In the case of same sex marriage or civil partnership dissolution, this has been exactly the same except the adultery basis is deleted.

It had been argued for some time that the need to set out allegations against the other party as part of the mechanism for getting divorced is counterproductive and creates acrimony when it need not exist.  While petitions based on adultery at least point towards an agreed factual position (and for the most part we have given up in naming co-respondent’s) allegations of unreasonable behaviour can be very contentious.

The practice in recent times has been to keep such allegations to a minimum, but there is of course the danger of going the other-way and filing a petition that does not, in fact, contain sufficient particulars of unreasonable behaviour to satisfy the court that it has been proven that the marriage has broken down on that basis.  I have yet to meet anyone who is the respondent in proceeding and who has brought into the office a petition based on unreasonable behaviour, who indicates quite clearly that the allegations are entirely accurate and are admitted.

Hindsight can play a great part in putting together allegations that may not have been a major issue at the time and inevitably resentment is caused when these are seen set down on paper.

The government is therefore going to consult at looking at alternative means for ending marriages and it is the expectation that they will be looking to move away from fault-based divorces and replace it with a process which whilst still part of a legal procedure will be less contentious.

There are, of course, contrary views.  There will be many who say that “divorce is too easy” and that divorce should not simply be available on demand without, as a matter of public policy, providing some sort of justification as to why the marriage should be brought to an end.

So what might we get instead?  I suspect that the answer will be something not unlike the provisions that were to have been brought in by Part 1 of the Family Law Act 1996, which was never implemented and ultimately repealed.  That provided for a system whereby one party gives a formal notice of a wish to end the marriage and there was to be a fixed timescale in place to provide for “a period of reflection” before moving on. 

I recall that that period of reflection was required to be longer if there were children involved.   My impression at the time was that while that proposed system dispensed with controversial allegations, it did not make matters necessarily easier and certainly not quicker.  It remains to be seen therefore what proposed new arrangement emerges as a result of the public consultation.

There are, however, many other issues which cause tension and difficulty between separating spouses, whether it be in relation to arrangements for the children or how assets are to be divided.  The initial approach ought to be to encourage a cooperative and non-hostile approach, but this is not well served by having at the outset to ask client to provide details of what they say the other party has done wrong during the course of the marriage.

It does follow from what is being suggested that there will no longer be any such thing as a defended divorce and it will therefore be primarily a matter of stating the intention and waiting for the appropriate time to elapse.

It will be recalled that the issue of the grounds for divorce was brought into sharp relief recently by the high publicity case of Owens –v- Owens for a defended divorce, and the issue of whether the unreasonable behaviour particulars were sufficient, which was before the Supreme Court.

As I have said, this is a public consultation.  It is not legislation that is before Parliament debate and it will very much depend whether there is political will on the part of the government to push forward with this.