THE DIVORCE BLAME GAME IS NEARLY OVER
SOPHIE KAY
The Divorce Blame Game is Nearly Over Sophie Kay was Called to the Bar in 2016. Sophie practises in family law at 5 Pump Court Chambers. She specialises in divorce, private children and domestic violence work. She was awarded the Jules Thorn Scholarship and is a member of the Attorney General’s Junior Panel of Counsel.
The Divorce, Dissolution and Separation Act 2020 (‘the Act’) received Royal Assent on Thursday 25 June 2020, having swiftly completed its passage through Parliament. It is remarkable that the Act was fact-tracked through its final parliamentary stages, especially during Covid-19, which exacerbated tension for many couples whose marriages were already strained. It is noted, however, that there was much debate surrounding the Act prior to Parliament’s prorogation, coupled with the 30-year campaign by family lawyers and organisations for no-fault divorce. The Act is long overdue. The Act is not the first legislative attempt to introduce ‘no-fault’ divorce. Divorce law was very nearly reformed by Part II of the Family Law Act 1996, which had allowed for no-fault divorce, provided couples took part in compulsory information meetings. However, this was never implemented and was quickly repealed. In 2013, Lord McNally said the decision to repeal was based on the results of pilot schemes of the information meetings, which showed that the meetings were unworkable, inflexible and not tailored to the parties’ individual circumstances. When implemented, the Act will enable spouses to divorce without having to attribute blame or wait
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the minimum two years in a state of limbo as separated spouses, as prescribed by the current law. This is a landmark and welcomed Act, and represents the biggest shift in divorce law in this jurisdiction in over 50 years.
The current law Under the Matrimonial Causes Act (MCA) 1973, in order to divorce couples must be married for at least one year, and must establish one of the five ‘facts’ to support the ground that the marriage has irretrievably broken down: • Adultery; • Unreasonable behaviour; • Desertion; • The couple has lived apart for at least two years and both agree to the divorce (divorce by consent); • The couple has lived apart for at least five years, even if one partner disagrees (divorce without consent). Problems arise when a spouse disputes these facts and resists the divorce. If the divorce is successfully defended under one of the ‘blame’ grounds (adultery, unreasonable behaviour or desertion), the other spouse is trapped in the marriage for five years from separation. Many couples do not have the funds or time for their lives to be paused for
2020 Middle Templar
such a long duration. This is plainly unsatisfactory and unjust. The Supreme Court’s rejection of Tini Owens’ appeal, where her husband refused to agree to the divorce, is an infamous example. At first-instance in Owens v Owens, it was found that the marriage had broken down, but not because of the 27 examples cited by Mrs Owens of unreasonable behaviour, which were deemed flimsy, exaggerated, and isolated incidents. For instance, she alleged that Mr Owens had been moody and argumentative and had disparaged her in front of others. Ultimately, this decision was upheld by the Court of Appeal and the Supreme Court, with Lady Hale stating that she, ‘found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us’. What is troubling is that Mrs Owens had to go to such lengths of citing 27 examples in an attempt to divorce her husband, whom she married in
