What happened in the world of divorce in 2018 and what does 2019 have in store?
Current legislation in England and Wales provides that a marriage can only be brought to an end if one person can show that the marriage has broken down irretrievably. This is done by the Petitioner in the divorce establishing one of five facts; the other person’s adultery, the other person’s unreasonable behaviour, desertion, two years’ separation with the other person’s consent; or five years’ separation. Petitions based on the unreasonable behaviour of the other person continue to be the most common option.
The 2018 case of Owens v Owens made headlines. It involved a wife who was found by the Supreme Court not to have proved her husband’s alleged unreasonable behaviour and, as she was unable to establish any other ground for divorce, she now has no option but to remain married to him for a further two years. At that point she will be able to proceed with a Petition on the basis that she has been separated from her husband for five years. This case has highlighted the increased importance of ensuring that the allegations of behaviour in your Petition are enough to persuade the court that it is unreasonable to expect the Petitioner to continue to live with the other person. This is something that the family team at Wolferstans can advise you on.
Following the case of Owens v Owens, the campaign for the introduction of a no-fault divorce system gained considerable momentum. The Divorce Law Review Bill, introduced in July 2018, requires the government to consider a proposal for a system of no-fault divorce.
2018 also saw the modernisation of the divorce process with the introduction of the government’s online divorce system. The pilot scheme saw thousands of Petitions issued by litigants in person in 2018. It is hoped that 2019 will see this digital option made available to solicitors to use on behalf of clients. Although this progress is positive, the importance of ensuring your Petition is drafted correctly, with the grounds for the divorce sufficient to prove the marriage has irretrievably broken down, and with the relevant claim for financial relief and costs, cannot be overstated. The online system also does not allow the resolution of the financial issues arising from the divorce. Again, these are issues which we will advise you on.
In June 2018, the case of Steinfeld and Keidan went before the Supreme Court. This was a case brought by a heterosexual couple who did not believe in the institution of marriage and claimed that is was unfair that the option of a Civil Partnership was not available to them in the same way as it is available to same sex couples. The Supreme Court concluded that the current law is incompatible with Human Rights and resulted in discrimination, urging the Government to review the law.
Another change in 2018 included a shift in the courts expecting couples to move towards financial independence after a divorce. In July 2018, in the case of Mills v Mills, the Supreme Court decided that an ex-husband should not be expected to step in and assist his ex-wife following her financial losses which resulted from her unwise financial decisions.
So what does 2019 have in store? It is perhaps unlikely that the Supreme Court will see so many family cases making headline news again this year. However, it is hoped that the government will find some Parliamentary time to give further consideration to the issues which have been highlighted in 2018, including the introduction of a no-fault divorce system. At Wolferstans, we strongly believe that this would help reduce conflict and confrontation in what is already inevitable a difficult and stressful process. There is a long way to go before no-fault divorce can be introduced, with the government having to conduct a full review of the law, but hopefully 2019 will see further positive steps towards this.