Amid mounting pressure from the community, the UK government has announced plans to modernise the “archaic” state of divorce law in England and Wales. At present, people seeking a divorce have to prove at least one of five facts. Three of these are based on the idea of “fault”: adultery, behaviour or desertion. The other two are based on separation: a period of two years will suffice if both parties agree to the divorce, but a period of five years is required if one party objects.
Divorce law reform would mean that couples no longer have to prove who is at fault for the breakdown in their relationship, bring the UK into line with other jurisdictions, such as Australia.
In a release shared this weekend, the government said it wants to bring divorce law up-to-date by removing the need to show fault and the need to prove a period of time spent living apart.
Justice Secretary David Gauke said: “Marriage will always be one of our most important institutions, but when a relationship ends it cannot be right for the law to create or increase conflict between divorcing couples.
“That is why we will remove the archaic requirements to allege fault or show evidence of separation, making the process less acrimonious and helping families look to the future. The proposals are set out in a government consultation launched today, and will apply to marriages and civil partnerships.”
The government has faced increased pressure to reform the existing divorce law since July, when the Supreme Court ruled that Tini Owens was not entitled to divorce her husband on the grounds that she is “desperately unhappy” in their marriage because he had objected.

Tini Owens, 66, has asked the Court of Appeal to overturn a family court ruling, which said she couldn’t divorce her husband Hugh Owens, 78.

The court heard her case was that the marriage had broken down, but Mr Owens disagreed and said the couple still had a “few years” to enjoy.

Judge Robin Tolson ruled against Mrs Owens in the family court last year, concluding that her allegations were “of the kind to be expected in marriage” and refused to grant a divorce petition.

Three appeal judges, led by Sir James Munby, the most senior family court judge in England and Wales, analysed the case at a hearing in London.

Philip Marshall QC, representing Mrs Owens, told the court that the “vast majority” of divorces were undefended in 21st Century England. He said: “It is extraordinarily unusual in modern times for a court to dismiss a petition for divorce.”

The court was told the couple had married in 1978 and lived in Broadway, Worcester.

Mr Marshall said Judge Tolson had failed to make “proper findings of fact” and argued that his ruling should be overturned.

Mrs Owens had made 27 allegations about the way Mr Owens treated her, including that he was “insensitive” in his “manner and tone” and said she was “constantly mistrusted” and felt unloved.

Mr Owens, a retired businessman, disagreed and denied allegations made against him.

Mr Marshall said judges had to consider the “cumulative effect” of what might be classed as a long list of trivial matters.

divorce law, divorce, no fault divorce, separation, divorce, divorce lawyers brisbane“It was my client’s complaint that her husband treated her in a childlike way,” Mr Marshall told judges. “And in a way which was effectively that she should agree with his will.”

Barrister Nigel Dyer QC, who represented Mr Owens, said appeal judges should not overturn Judge Tolson’s ruling.

He said: “At the moment, as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown.”

Judges were told that Mrs Owens had an affair which lasted less than a year and the court heard the couple, who have grown-up children, slept in different rooms.

Sir James said the judges would examine legislation laid down by Parliament and told lawyers: “It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.”

Specialist UK divorce lawyer Ayesha Vardag said judges should not compel people to stay married.

“This case highlights the absurdity of fault-based divorce,” she said. “If a party is willing to go to the Court of Appeal to fight for a divorce, spending significant sums on the way, there is clearly no future for the marriage.”

She said it was “beyond archaic” that it should have to be proved to a judge.

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
This means that for a couple to divorce, it needn’t be proved that either party is ‘at-fault’ for the breakdown of a marriage. The actions of one party in contributing or causing a marriage break down are not considered by the court.
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