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"Whose Fault is it Anyway?": Reform of Divorce

Joshua Viney, pupil, and Richard Sear, barrister, both of 1 Hare Court, examine the issue of divorce reform following the President’s recent speech.

Joshua Viney, pupil, 1 Hare CourtRichard Sear, barrister, 1 Hare Court

Joshua Viney, pupil, and Richard Sear, barrister, both of 1 Hare Court

In a speech ushering in some of the recent family justice reforms Sir James Munby, President of the Family Division, concluded by looking to the future. In doing so he singled out the need for reform of divorce law:

'Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?'

Clearly, the President's choice of words was intended to explain the current state of divorce law in language that would be readily understood by a lay audience (an unenviable task) because as every family lawyer knows: irretrievable breakdown is currently the sole ground for divorce (a point the President had clearly stated in the Judicial Office Press Conference prior to making his speech).

Three avenues of further reform are apparent from the President's speech:

i. the separation of divorce from claims for financial relief following divorce;

ii. an end to judicial supervision of the divorce process and the formal introduction of an administrative process; and

iii. the abolition of concepts of fault from the law of divorce.

Are these reforms likely and, if so, how are they likely to manifest?

The separation of divorce from claims for financial relief following divorce

Financial relief and divorce are currently intermingled. For an order of maintenance pending suit to be made, a petition for divorce, nullity of marriage or judicial separation must have been filed. For a financial order to be made there must be a decree of divorce, nullity or judicial separation (or a decree nisi).

In the press conference prior to his speech the President stated:

'Part of my thinking is that we should uncouple the process of divorce from the process of financial remedies and ancillary relief, as it used to be called, following divorce in the way in which the recent changes have actually finally uncoupled the process of divorce from the process of dealing with child disputes consequential upon the divorce.'

The President would appear to be echoing the suggestions of the Family Justice Review, headed by David Norgrove, which proposed:

Reforms akin to the suggestions of the Family Justice Review can be anticipated: first the abolition of the archaic two-stage process of decree/nisi absolute and, second, the removal of the requirement for a decree (absolute or nisi) of divorce, nullity or judicial separation before a financial remedy application can be made. A party would simply be able to make a financial remedy application against a spouse or ex-spouse.

This would require an alteration to the existing law enshrined in the MCA 1973. In relation to financial remedies, the provisions requiring a decree before obtaining a financial remedy order would be removed. A possible consequence of such a development would be in respect of maintenance pending suit, which might be reclassified as an 'interim financial remedy' and expanded to include interim capital provision.

Administratively, there would be a single application for divorce and references to a divorce petition would be removed from the forms relating to financial remedies. 

Having been proposed by the Family Justice Review and now targeted by the President, it would appear that these may be the most likely reforms to appear over the forthcoming years. The necessary legislative and administrative amendments would be unlikely to cause much political backlash.

Removing judicial supervision and the formal introduction of an administrative process

In relation to the removal of judicial supervision the President stated:

'The process, as you will know… is an essentially bureaucratic administrative process, albeit one conducted by a district judge.'

'[T]here are countries where the system is that a divorce which is by consent and where there are no children is treated as an administrative matter dealt with by what, using our terminology, one might describe as the registrar of births, deaths, marriages and divorces. It seems to work. Well, by consent, obviously, not if there's dispute.'

The President continued that he 'would not contemplate' the adoption of a purely administrative process where:

Again, to a degree, this would reflect the proposals of the Family Justice Review which suggested:

'[T]he process for initiating divorce should begin with the online hub and should be dealt with administratively in the Family Justice Service, unless the divorce is disputed.'

That said, the President goes beyond the Norgrove proposals in two ways. Firstly, the President included children of the family as a block to an administrative process. Second, the President used the phrase 'consent'. It is unclear whether he meant 'consent' as per section 1(2)(d) of the Matrimonial Causes Act 1973 (two years separation and consent) or if he meant that a party did not dispute a petition, which was the position of the Family Justice Review. Clearly, only allowing for an administrative process where the parties consented to the divorce, as opposed to not disputing it, would limit the number of petitions which would be considered under an administrative process (according to the ONS in 2012 only 25.6% of petitions were based on s.1(2)(d)). It would seem more likely that the President would be adopting the position of the Family Justice Review.

Were the reforms of the Family Justice Review to be implemented, the requirement for judicial supervision where a petition is not disputed would be removed. A further requirement may be that there are no children of the family.

Of all of the contemplated reforms, this would be the most administrative (no pun intended). However, it would still probably require legislative reform. Inter alia, alteration would be needed to section 1(3) and (4) which as currently enacted require the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent and to be satisfied of the evidence in relation to the fact relied upon. These provisions would have to be amended or a new provision enacted to disable them where appropriate.

The abolition of concepts of fault from the law of divorce

Section 1 of the Matrimonial Causes Act 1973
prescribes that divorce may be achieved through demonstrating irretrievable breakdown of the marriage via one of five facts – adultery, unreasonable behaviour, desertion, 2 years separation with consent and 5 years separation with no consent. Three of these facts i.e. (a) adultery, (b) unreasonable behaviour and (c) desertion. are fault-based.

No-fault divorce was beyond the remit of the Family Justice Review and it made no proposals for the removal of fault. As such the President's comments in respect of fault went further than the Family Justice Review. He commented in his press conference that the current law was intellectually dishonest as in reality:

'[W]e have and have had for quite some time in this country divorce by consent in the sense that if both parties wish there will be a divorce if they're able to establish the grounds for divorce which is very easy to establish.'

He went on to highlight that:

'it's not very difficult, bearing in mind the current concept of unreasonable behaviour, to come up with some petition containing what in a more robust era would have been called anaemic allegations of misconduct. The reality is that many divorces go through by consent in the sense that the parties have actually agreed the grounds of alleged unreasonable behaviour before the petition is issued. If they don't want to do that and there's been two years separation, then it goes through by consent so the reality is we have divorce by consent. Defended divorces, contested divorced are almost invisible. They hardly ever happen nowadays.'

This would bring:

'a bit of intellectual honesty to the situation and getting rid of an unnecessary process which simply makes life more complicated because the district judge under the present system has to go through the ritual of considering whether the anaemic allegations contained in the petition drafted by agreement do or do not amount to unreasonable behaviour. Most of the time the district judge says, "Yes." Occasionally the district judge says, "No," throws the petition back and the petitioner then goes to the other party and they agree to put in slightly more robust allegations. Of course that is not a sensible process. I do not on the other hand see how this in any way undermines marriage or the sanctity of marriage. It is simply recognising the reality of where divorce law reform has got to and indeed the reality of where divorce law got to about 30 years ago, 30 or 40 years ago.'

The essential point is that currently parties are effectively achieving divorce by consent by filing petitions containing anaemic unreasonable behaviour facts and either agreeing them or not disputing them. The President's proposal appears to support the abolition of the two-year separation requirement under the Matrimonial Causes Act 1973 section 1(2)(d). As such, parties would use their own consent to demonstrate irretrievable breakdown.

A number of questions arise. First, the proposal would not cover a case where the divorce is contested (roughly 2% of cases according to the Family Justice Review). The President commented on defended applications for divorce:

'Defended divorces, contested divorces are almost invisible.'

On the latest ONS statistics, that's still 2,358 divorces a year. Admittedly, very few of these will ultimately require a contested hearing. 

Second, there are numerous cases where there is no cooperation and/or a party alleges adultery (admittedly the parties may cooperate on this) or wait for 5 years and proceed without consent (an aggregate of 30,273 cases according to the latest ONS statistics).

A simpler mechanism was proposed by the Law Society in response to the Family Justice Review consultation:

'The Law Society believes that the adversarial grounds for divorce should be removed and a 'no fault' system introduced. By 'no fault' system we mean that no grounds would need to be shown as to why the marriage has irretrievably broken down when submitting a divorce petition.'

Predictably, there was a strong media response to the President's suggestions, the most immediate question being 'do you think … that [the abolition of fault] might undermine notions of responsibility in marriage'. The President retorted that the abolition of fault would bring 'intellectual honesty' to the situation because in reality 'many divorces go through by consent in the sense that the parties have actually agreed the grounds of alleged unreasonable behaviour before the petition is issued' and that defended divorces are 'almost invisible'.

The desire to bring inserting intellectual honesty into the divorce process is self evidently desirable, and yet it is difficult to see how intellectual honesty will persuade politicians and the public at large that fault should be abolished.

Perhaps a more persuasive focus would be on the financial unreality of fault-based provisions, which are left irrelevant by the unaffordable costs of divorce litigation to most individuals and the taxpayer. The President stated:

'A system based on the assumption that parties are represented must be radically re-designed to reflect the reality that parties will no longer be represented in a new world where there is so little legal aid.'

However, while this comment was not aimed directly at divorce reform, it could be.

It must be implicit in the retention of fault in divorce law that if one party alleges irretrievable breakdown on the basis of a fact, then the other party must be able to challenge that assertion and, if relevant, make their own allegations of fault. Anything else would be an erosion of justice. The ability to challenge the petition is provided for in the Family Procedure Rules r 7.12 and 7.14 and considered in section 1 of the Matrimonial Causes Act 1973 itself:

'(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.'

If a party has applied for divorce, asserting irretrievable breakdown through one of the fault-based facts, and the other party does not admit that allegation then the latter party is left with three options. They may:

(i) instruct legal representatives and contest the petition;

(ii) represent themselves and contest the petition; or

(iii) not contest the application despite not agreeing with the alleged fact.

Option (i) would be a decision pregnant with legal costs. To contest fully the fact relied upon would require solicitors and potentially counsel. This could be a heavy financial burden for all but the wealthiest litigants and is simply unaffordable to those parties who would previously have qualified for legal aid. Furthermore, successfully contesting a petition can be a Herculean task and the cost to the public of providing a court to hear such applications would be considerable.

That leaves options (ii) and (iii). Option (ii) in itself is a daunting prospect for the majority of lay clients. Further, the cost to the taxpayer is even greater with a litigant in person, increasing the amount of court time required to deal with the contested application.

Lastly and perhaps most importantly, option (iii) undermines the purpose of having fault provisions in the first place. If, for all practical purposes, a party is able to allege with impunity that a marriage has irretrievably broken down on the basis of a fault-based fact, then the statutory framework is defunct. For those unable to instruct legal representatives or conduct litigation themselves, then the first party to petition is almost guaranteed to succeed in their petition, perversely encouraging a rush to petition, rather than acting as a levee to divorce, as some proponents of fault would maintain. Moreover, the time bars for reliance upon adultery, unreasonable behaviour and desertion outlined in section 2 MCA 1973 are devoid of substantive meaning and content if the respondent cannot actually rely upon them.  

Any argument in favour of a fault-based regime must be able to justify its costs to the individual and the taxpayer. Any fault-based regime must be contingent on a party being able to contest meaningfully any allegations made against them without suffering oppressive detriment. Abandoning fault would simplify the system and reduce the costs of divorce for individuals and the taxpayer alike.

Is the abolition of fault likely? Not in the current climate. It is simply politically too controversial. However, should the two likely reforms discussed above be implemented these may be incremental steps towards the abolition of fault. The debates about a fault-based regime are entirely out of touch with the reality of divorce litigation for the vast majority of litigants. Refocusing the debate on creating a straightforward, practical and financially viable system for the individual and the public is more likely to prove successful. If this also injects some intellectual honesty, so much the better.