Not reading too much into divorce rate drop

Commentators and newspaper columnists have done their best to divine insight from the recently announced drop in divorce figures.

The truth is that, while the numbers are interesting, reading any long-term trends into them is much harder.

In 2020, there were 103,592 divorces granted in England and Wales, a decrease of 4.5% compared with 2019. That fall seems to have surprised many who thought that the many stresses of the pandemic, including that first lockdown in March and the months of uncertainty that followed, would drive up the numbers.

The reality is most relationships finished off by Covid would have struggled to reach a decree absolute by the end of that year. The ‘average’ divorce takes something like four to six months and the courts themselves were hit by restrictions and lockdown.

Only after we’ve seen the picture for the succeeding years may we gain a clearer understanding of what impact Covid has had on couples taking action to end their relationships. Even then there will be other factors that have to be taken into consideration.

The numbers released by the Office for National Statistics for 2020 included:
  • The majority of divorces were among opposite-sex couples, 98.9%.
  • There were 1,154 divorces among same-sex couples, increasing by 40.4% from 2019; of these, the majority continued to be accounted for by female same-sex divorces 71.3%.
  • Unreasonable behaviour was the most common reason for wives petitioning for divorce among opposite-sex couples, accounting for 47.4% of petitions.
  • For husbands, the most common reason for divorces was a two-year separation. This accounted for 34.7% of divorces followed by 33.8% for unreasonable behaviour.
  • For same-sex divorces, unreasonable behaviour was the most common reason for divorce in 2020 for both female and male couples. Unreasonable behaviour accounted for 55.2% of female divorces and 57.0% of male divorces.
  • The average (median) duration of marriage was 11.9 years for opposite-sex couples, a decrease from 12.4 years in 2019.
  • For same-sex divorces in 2020, the average (median) duration of marriage was 4.7 years for female couples and 5.4 years for male couples. (Divorce among same-sex couples has only been possible since 2015 following the introduction of same-sex marriages in March 2014.)
No fault divorce

Currently in England and Wales, those wishing to divorce need to prove the marriage has broken down and cannot be saved. This can be on the grounds of adultery, unreasonable behaviour, desertion, separation for two years (with partner’s consent to divorce) or separation for five years (without partner’s consent).

That’s all set to change from April 6, when so-called no-fault divorce is introduced. This will allow the dissolution of a marriage without the need to show wrongdoing by either party.

(Commentators have also surmised this may have played a part in 2020’s divorce rate drop. Separating couples who did not want to have to prove fault may have waited for the legislation to come in. It had been set for introduction in autumn 2021 but was delayed.)

We wait to see how exactly the new system works. Our advice would always be to seek professional legal advice at the earliest opportunity if thinking about divorce or separation.

It is always important to be aware of all the options and implications. That way informed decisions can be taken about important matters such as family, finances and relationships.

Single parents will benefit from support bubbles

Single parents will be among those given further freedom from lockdown by the Government’s latest easing of restrictions.

Boris Johnson announced that from Saturday (June 13), single adult households – adults living alone or single parents with children under-18 – will be able to form a ‘support bubble’ with one other household.

Those in a support bubble can act as though they live in the same household. They do not have to stay two metres apart and can be together inside each other’s homes, even staying overnight.

For single parents with young children it means they could partner up with grandparents. This would  allow the three generations to spend time together indoors for the first time since March.

It will also reunite those in relationships that have had to stay apart because of the previous, stricter lockdown conditions.

Support bubbles must be exclusive

Mr Johnson stressed that support bubbles had to be exclusive; individuals cannot switch the household they are in a bubble with or connect with multiple households.

One exemption to the exclusivity rule is for parents who are separated. They can continue to move children between households, so the children of separated parents could potentially be in two separate support bubbles – one for each parent.

If any member of the support bubble develops coronavirus symptoms, all its members will need to follow the normal advice on household isolation.

The relaxation does not apply to the estimated two million people in England shielding from coronavirus because they are most at risk of infection.

Lockdown strain

The move is recognition of the huge strain that lockdown restrictions have placed on family life, particularly for the estimated eight million adults who live alone.

There were 2.9 million UK lone parent families in 2019. And the number of people living alone has increased by a fifth over the last 20 years. This has been driven mainly by increases in men aged 45 to 64 living alone.

The relaxation will throw up anomalies. For instance, children who are living with a single parent can meet, stay with and hug a set of grandparents. However, children living with both parents can only do the same with a grandparent who is living alone. But the Prime Minister said the scientific advice was still to restrict large numbers of people coming together.

Mr Johnson said: “There are still too many people, particularly those who live by themselves, who are lonely and struggling with being unable to see friends and family.”

June 11, 2020


Helping someone who doesn’t believe they’re addicted

Behavioural health advisor Jonathan Edgeley helps people beat their addictions and guides their families through the turmoil of dysfunctional relationships. Previously he spoke to Merrick Life about how he uses his personal experience of addiction to help others.

In the second part of this interview, Jonathan explains that when a family is on its way to rock bottom, an intervention may be the only solution.

“An intervention is where a family have got a situation where they are convinced their loved one’s repeating patterns of problematic behaviour are having a very negative impact on their lives and the family’s. It is becoming very disruptive – but the loved one doesn’t accept they have a problem.

“An intervention is a very loving thing to do for somebody. You will probably have heard that everyone needs to reach rock bottom before they are able to get help.  An intervention, essentially, moves the bottom up to where they are.

“We create what we call a ‘recovery team’ within the family.  They could be the partner, children and a couple of close friends, brothers, sisters, mums and dads, those people who have got a vested interest in helping this person get well.

“Generally, we get them all around the table, no less than three really, but up to seven or eight people.

“We then allay any of their fears and resentments by taking them through an educational process on the disease concept.  What we are looking to achieve is understand that this person is suffering with an illness, rather than it being a choice.

“We need to understand how they feel about this person, whether there is anger, whether there is rejection. What we are doing is, we are looking at a team, and we are looking for a captain. Somebody whose spirit is strong, doesn’t hold any kind of real anger or resentment towards the individual and is going to be able to lead that family recovery team.

Love and hope

“Essentially, we are creating a compassionate family team that are willing to meet their family member with love and hope.

“We have to explain that their loved one didn’t make a conscious decision one morning to be an addict, and to wreck their life, their career and family. It’s not a moral deficiency or a choice in that respect. They are suffering with a degenerative illness which, if it isn’t arrested, will only get progressively worse.

“By following a proven model we guide each family member to write a letter, that states they love them, they are there to help, however they are becoming increasingly concerned about their drinking or substance misuse and are willing them to get the help they so desperately need .

“The letters are written without blame or shame and are created to connect on a feelings level with empathy and love ensuring the person receiving them is left in the knowledge that help is on offer.

“The planning stage can be extremely powerful and at times bring up strong emotions. However, it’s essential on the day of the intervention the family stay calm and have practised their letters; remain focussed and are not drawn off track.

“Once they’ve written those letters, we share them with one another in the group.

The bottom line

“Then we move them to something called ‘Bottom Line’. This is something each family member is prepared to do should their loved one not accept the help. For example, ‘if you don’t accept the help offered today, then I will have no alternative but to move out of the family home and take the children’.

“That might be one.  Another one might be, if it is a child, ‘if you don’t take the help that is on offer, then I’ll be taking your car from you’.

“So, it is something that is quite significant, but it has to be something they are prepared to do. This is really, really important and is an essential part of the intervention process. The family must stick to their bottom lines otherwise it could scupper any chance of them accessing treatment in the future.

“We invite the loved one to a family meeting, on a certain date, at a certain place. This is generally a mutual venue or in their family home.

addiction intervention

The family must stick to their bottom lines


“The family are there, we have the process. We know who is saying what and when. They will bring their letters; they sit down. It is a very, very powerful and moving experience.

“I facilitate that process because generally, we can expect a degree of kickback from the loved one.

“When everyone says what they need to say, the loved one will either agree to accepting the help or not.

“If they say ‘yes’, great. The family hug their loved and explain they have been working on finding them a treatment facility that meets their love for horses, the outdoors or specialises in music therapy and other things that connect with the heart of the family member. ‘We’ve got a car outside, your bag is packed, and we are good to go’.  And that’s essentially how it works.

‘I’m not going’

“Now, if that person says ‘no, I’m not going’. We hand it back to a family member to deliver their bottom lines.

“90% of the time people will accept it then and they will go.

“In situations where they don’t, then we just have to leave it. Everybody implements their bottom lines and sticks to them. This is when the family need to pull together and support one another to stick to their bottom lines. Generally, what happens is the situation comes back around again. They get to a point where the individual goes “I can’t handle this anymore. I’ll go.”

“This might be a week or a month later. But generally, the situation is turned around, and they do accept the help at some point and go down the process.

Emotionally charged addiction intervention

“This is often an emotionally charged situation. What I’m there to do is advise the family and ensure they are looked after emotionally and therapeutically.

“I can create options in terms of the treatment facility, so that it meets their needs and their budget.

“I’m there from that initial consultation, through to intervention planning, through to intervention, through to transportation to the treatment, through to case managing the situation for their loved one while they are in treatment, feeding back to the family.

“Then on discharge creating an appropriate aftercare programme, so they reintegrate appropriately with the family and within the community and back into work.

“Essentially I’m there to offer somebody a chance of a better life. A chance of a life without mind and mood altering substances or behaviours.”


Jonathan Edgeley is the Founder of Montrose Advisory which offers independent support and guidance to families seeking a solution to a behavioural health problem. He takes a family through the complex world of addiction and mental healthcare and creates robust care pathways to meet their loved one’s specific needs, circumstances and budget.


No fault? Not always

Do this week’s widely-approved changes to divorce law risk a potential disservice to one very important section of people?

The Government has announced legislation to overhaul divorce law with the intention of reducing conflict between parties.

The move to ‘no fault’ divorce follows a public consultation in which more than 3,000 interested parties took part.

Proposals would end the need for spouses to evidence at least one of adultery, behaviour, desertion, two years’ separation (if the other spouse consents to divorce), or five years’ separation (if the other spouse disagrees). Instead, one or both parties would provide a statement of irretrievable breakdown.

While the proposals that will update 50-year-old laws have been generally welcomed, they may remove an important part of the healing process for spouses who’ve suffered through their marriages.

Family view

Merrick Life has spoken with two families who’ve recently experienced the divorce process. We heard from them that attributing blame for the marriage breakdown was actually a powerful positive.

‘Malcolm’, who has been supporting a family member through their divorce, said: “There will be many divorces where there is no blame. But when there is behaviour that has led directly to the breakdown of the marriage, then it just feels like an opportunity to voice that is being squashed.

“In so many areas of life we are being told we have to address feelings. It is part of the process of healing to get things out that have happened. The concept of ‘no fault’  flies in the face of that.

“For my family member it’s part of their recovery. It’s making them  feel better. It has made them sit down and think about everything that’s happened and realise it’s not their fault.

“The end result would be the same under a changed law but the journey may be harder. There doesn’t appear to be the opportunity to get all that stuff out and deal with it.”

Client view

A female client also told us: “I think there’s a danger that by trying to make everyone fit under this umbrella you’re saying that what some people have been through is irrelevant, and it can’t be irrelevant.

“If there has been abuse in the relationship then I think the courts should listen sympathetically to that.

“I’m sure ‘no fault’ will be fine for many couples but for me it would have been a disaster. I had to summon every ounce of courage and energy to seek a divorce. The abuse I suffered was not just verbal and physical but also financial.”

“If everything is ‘no fault’ for those like me it is not true, it’s not realistic.”

Government view

The Government admitted that for some being able to blame their partner for the breakdown was a cathartic experience.

The report says: ‘Some thought that ending the availability of conduct-based facts would remove the right of “innocent” parties to name the “guilty” party.

‘The role of the court, however, is not to adjudicate on who was at fault for the breakdown of the marriage, only to satisfy itself that the legal threshold of irretrievable breakdown is established.

It later adds: ‘We appreciate that some respondents believed that parties who were “wronged”, as they saw it, should have an opportunity to set this out by using a conduct-based fact. But we also heard arguments from groups representing victims of domestic abuse that – on balance, given the limited legal effect of this and its risk of heightening conflict – this is unnecessary as part of the process of obtaining a divorce.’

Merrick view

Merrick principal Amanda Merrick welcomed several aspects of the proposed changes, including reducing time limits for a separation with or without the other party’s consent.

But she added: “There are, of course, couples for whom no-fault would be the preferred route. For some people though, such as those who have been in an abusive relationship, assigning fault or blame to the other party is empowering; very often the start of their healing process.

“Divorce reform should therefore be about creating options. It shouldn’t be about making it the same for everyone no matter what experiences have brought them to this point.

“Few, if any, undertake divorce lightly and for those who have suffered the petition is often the first step towards re-finding their voice and being heard; it is the start of a journey to move away from the past towards a better future  .”

Justice Secretary David Gauke said new legislation will be introduced to Parliament ‘as soon as parliamentary time allows’.

There’s a summary of what’s proposed here and you can read the Government’s response to the consultation here.




Surrogacy now
an option for single parents

The number of parents using surrogates in the UK is rising thanks to high-profile celebrities, changing public attitudes, and corresponding law reforms. Barrister Jennifer Lee told Merrick Life the latest law change is most welcome.


Just over a year ago the government published its first ever guidance on how to start a family using a surrogate.

The publication was recognition that surrogacy rates are increasing. That’s in part due to a relaxation in the law that allowed same sex couples the same rights as heterosexual couples to apply for parental orders, which confers legal parenthood for a child born through surrogacy on the intended parents. Parental orders are ‘transformative’ and last for the child’s entire life.

In 2016, 368 parental orders were awarded – that’s up from 194 in 2012.

And in January this year, after a prolonged legal fight, the law was further changed to extend the same right to single people wishing to have a family this way. To apply, single parents must have a genetic link to the child born through surrogacy.

For Jennifer Lee, the changes reflect shifting views on an often-controversial area.

She said: “The law allows more people to apply and reflects the fact that society has moved on.

Surrogacy for single parents

“It ends the discriminatory bar against single parents from applying to become the legal parents of children born through surrogacy. The reform will pave the way for a wider group of people to apply to become parents via the surrogacy route, whether they be single fathers or single mothers, including older women who are increasingly seeing surrogacy as a viable route to starting a family.

“I think we will see more people resorting to surrogacy. I would expect an increase in applications from single people; just as we saw more same sex couples applying after the law was changed in 2008 to allow those couples to apply.

“Also, celebrities such as Tom Daley and Elton John (who have both had children through surrogate mothers) have raised awareness about surrogacy in general.

“It has huge relevance for modern people’s lives. Advances in science now allow older women to conceive, or to have a child through a surrogate if they wish.

“A lot of women are freezing embryos. It’s becoming a feature of modern life.  When you are slightly older, you may be more ready financially and mentally to have a child. But biologically, you might no longer be at a stage where you can carry a child yourself.

“With the recent advances in technology and the increasing number of women choosing to freeze their eggs, surrogacy is becoming an increasingly attractive option.”

Ms Lee said that while the latest law change has been widely accepted, there are still issues to be addressed.


“There are still a lot of misconceptions among the general public about the legal position under English law. I would certainly urge anyone considering surrogacy to seek specialist legal advice at the outset, before embarking on that journey.”

The now retired former president of the Family Court, Sir James Munby, has suggested we reconsider the current restrictions on paying surrogates anything more than “reasonable” expenses. And that we draw upon the model used in other countries – such as the United States and Canada. In those countries highly-regulated, commercial surrogacy systems are in operation, supported by surrogacy-friendly laws.

Ms Lee explained: “Because surrogacy arrangements are enforceable in certain states in the United States, and in Canada, that framework minimises the risks for all concerned. It ameliorates the risk of the surrogate mother changing her mind, and indeed the risk of the commissioning parents changing their minds.

“At the moment, under English law, those scenarios are entirely possible and we know it happens. That’s why pursuing surrogacy abroad, in countries where such arrangements are supported by surrogacy-friendly laws, can be an appealing option.

“In England, surrogacy agreements are entirely unenforceable. Surrogacy is legal, but advertising for a surrogate, or entering into a surrogacy arrangement for profit, is not. We are years behind places like California.

“Sir James Munby has called for better regulation and a more transparent system, which provides safeguards for all concerned.

Altruistic surrogacy

“This ensures that surrogate mothers are protected, not exploited, and are properly paid for their trouble. And that if someone changes their mind down the line you have a contract in place to fall back on.

“There is an argument that surrogacy done out of goodwill with no commercial element, in other words altruistic surrogacy, has worked well here for the past 30/40 years.

“However, because surrogacy arrangements are not enforceable, it is not an airtight system. Issues do arise for both the surrogate and the intended parents.

“So, for instance, a surrogate may decide to retain the child. And there have been cases where the intended parents have had to bring their surrogate to court.

“A system of informal arrangements is not entirely in keeping with the increasing numbers of people who are looking at surrogacy as a way of starting their family. There is uncertainty built in, which has led to increasing calls for the advanced system we see in California and Canada, for example, being replicated here. You would have to adapt these systems to suit the UK context but, in my view, a more watertight, legally-binding arrangement would provide certainty for everyone concerned.”

Ms Lee thinks there is still some way to go before we are ready to accept that carrying a child for another should involve contracts, with the threat of court sanction.


“The move to a California type system is controversial. It has been the longstanding position here that commercial surrogacy is a criminal offence. It will take time for people to find such a concept palatable, but it is certainly gaining ground.”

Ms Lee said there are valid concerns that such an arrangement would incentivise vulnerable women to become surrogates.

However, provided there are robust safeguards to ensure that potential surrogates understand the risks involved, and are not being pressured into an arrangement, her view is that it might well be a model that works.

Right now, she argues, it is most important there is greater public awareness of what the law actually means.

“There are children in this country born through surrogacy who are living with parents who are not in fact their legal parents because no parental order was ever made. Many people do not realise that, under English law, the surrogate (and her partner if she has one) will be the legal parent(s) until and unless a parental order (or an adoption order) is made.

Legal advice

“Real problems can arise. For example, if there’s a dispute about the child’s upbringing between the surrogate and intended parents, or if one of the parents dies. Not being the legal child of that parent might have real ramifications when it comes to inheritance.

“It is also not uncommon to see intended parents entering into a surrogacy arrangement without first obtaining specialist legal advice.  The intended parents may have decided to embark on a surrogacy arrangement, paid a lot of money to an agency overseas, but rather left the taking of legal advice until the very end.

“You might be faced with the baby’s due date being a month away and the parents realising at that stage that they’ll have to apply for a parental order upon their return to this jurisdiction, and leaving themselves very little time.

“Some parents may not realise that they need to apply for a parental order in this jurisdiction, so as to secure legal parenthood for their child born through surrogacy.

“Those are the sorts of cases that can become tricky.”


Jennifer Lee is a specialist family law practitioner at Pump Court Chambers in London.
She has a thriving practice in matrimonial finance, and wide experience of complex children cases. She has developed a niche practice in surrogacy and modern families, having acted for commissioning parents in Human Fertilisation and Embryology Act cases. Jennifer also acts in Court of Protection matters. She is ranked as a “leading junior” in The Legal 500, and in Chambers & Partners.

A cancer fight and homelessness – Cold Feet at its best

It may have been the ‘will they, won’t they’ of Adam and Karen’s burgeoning relationship that grabbed the Cold Feet headlines but it’s two other stories that sparked our interest.

While the two friends wrestled with their changing feelings – after nine series – it was formerly pin-striped David (Robert Bathurst) and breast cancer battling Jenny (Fay Ripley) who put us through the emotional ringer.

How many women could identify with Jenny’s dilemma? The straight-talking mum who is relied on to keep the family moving forward suddenly having to break step and deal with a very personal trauma.

Well-meaning husband and mum tried to outdo each other with their nursing skills. So Jenny sought refuge and community with those who could identify with her situation.

Stop Crying Your Heart Out

The scenes where she joined the ‘cancer choir’ and was moved to tears by their rendition of Stop Crying Your Heart Out understandably provoked a flurry of warmth on social media.

It was a star turn from Manchester’s Christie Hospital Rhythm of Life Choir – and a highlight of the whole series.

And her bewigged photoshoot to take the role of a romantic fiction writer demonstrated the long-running series has lost none of its knack of encouraging us to poke fun at life’s low blows.

The family struggled with how they should react to her illness. It was left to the matriarch to show them how to tackle adversity head on.

Elsewhere, David suffered his own, very David, fall from grace.

He found himself alienated from family and friends in his time of need. This the consequence of a career scaling the corporate ladder with elbows out and tailored shoes treading on anything in his wake.

He was penniless and on a downward spiral after the end of another relationship. We saw him riding the night bus and scrabbling in bins for food. All the while trying to keep up appearances for fear of being thought a failure.

Divorcee saved by his ex-wives

Life turned full circle when a former intern served an ice-cold dish of revenge and snubbed him for a job.

A sage reminder that in this changing world, homelessness can be closer than we’d like. And we have no idea of the stories of those who find themselves there.

How fitting that a character not known for his inclusivity and with two marriages behind him should be rescued by the combined efforts of his two ex-wives. If only all former couples could handle post-separation so magnanimously!

Soon we spied David, celebratory bottle in hand, thanking one and all for catching his fall. Discovering his ex, Karen, is hooking up with Adam sent him into another tailspin.

The series closed with a blossoming relationship of his own. Maybe now he can focus on his own life?

(*) Merrick is proud to support the Booth Centre. They do wonderful work bringing about positive change in the lives of people who are homeless or at risk of homelessness. To find out more, click here.

(*) Breast Cancer Care‘s free Helpline is available on 0808 800 6000.

Never a bad day to seek legal advice

The start of a new year is often a time for review and reassessment.

The break from the regular routine over the festive period gives many the time to ponder their life and their priorities. Spending long uninterrupted periods with family can unfortunately bring to the fore issues that remain hidden at other times of the year.

And some in failing relationships resolve to act.

As such, the first working Monday of the new year has become labelled ‘divorce day’ by the media. Many in the legal profession are keen to distance themselves from the negative connotations of this.

Our view is quite simple. If your relationship is in trouble, whether it’s the first day of a new year or the last day of the old one, there’s never a bad time to seek out professional legal advice.

Amanda Merrick said for an individual contemplating divorce or just wanting to know what their options might be – it is important they empower themselves with information and take legal advice as soon as possible.

She said many clients attend a first appointment having mistakenly pre-determined that separation will leave them homeless, financially adrift or never able to see their children.

In most cases none of these propositions bear any resemblance to what actually happens.

Primary concerns

Put simply – having enough money to live and the future of any children are primary concerns in most break ups.

Amanda said: “It can be worth considering some form of counselling. Or, if there is a specific issue, another dispute resolution service, such as mediation.

“Relate is, perhaps, the best-known provider of counselling services for couples. But the NHS offers a similar service if one – or both partners – has a mental health problem, such as depression, that is affecting the relationship.”

But Amanda also urges people to prepare themselves if the relationship is beyond this point.

She said: “It’s never easy trying to establish a co-parenting relationship whilst in the throes of a separation. But if you have children that’s what you must strive to achieve for their benefit as soon as possible.

“The family court has wide-ranging powers to deal with children issues, but it cannot resolve any emotional stuff between the two of you caused by the relationship breakdown. Try not to lose sight of the real objective – damage limitation for your children.

“Whatever forum you use to resolve any financial issues, a full and frank exchange of information is likely to be required going back at least 12 months.

“Draw up as soon as possible a list of everything you know about your other half’s financial circumstances. Also making a start on getting all your relevant paperwork together helps to ground you in the facts.

“This can be particularly helpful should emotions subsequently take over and cloud your recollections.”

Want to know more about how Merrick can help? Click here.




Mr Owens’ barrister: It takes two to make a marriage

The barrister who successfully defended the year’s most high-profile divorce petition told Merrick Solicitors it took both spouses’ participation to make a marriage.

Nigel Dyer QC represented Hugh Owens in the Supreme Court when the UK’s highest court dismissed his wife Tini’s appeal against the lower courts’ refusal to grant her a decree nisi.

The landmark ruling prompted widespread publicity and renewed calls from family law solicitors for the introduction of ‘no fault’ divorce.

Mrs Owens’ petition relied upon her allegations about her husband’s behaviour to prove that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. But the Supreme Court agreed with both the original trial judge and the Court of Appeal in deciding that she had not sufficiently proved her case.

The Government subsequently opened a consultation on divorce law inviting submissions by December 10.

Owens divorce; Nigel Dyer QC

Mr Dyer, of London’s 1 Hare Court Chambers, said: “I think it’s difficult to see how a marriage can continue when one spouse refuses to participate in it.

“It’s got to be a consortium, and absent one party playing a role I don’t think that is a marriage.

Divorce reform necessary

“I do think divorce reform is necessary. The statute is outdated in contemporary society. It has its foundations in the matrimonial offences of the 19th century.”

Asked for his view of the outcome in the Supreme Court judgment, he said: “The Supreme Court has made it clear that the current law has been misinterpreted for many years by practitioners and judges using the expression ‘unreasonable behaviour” when referring to a petition relying on section 1(2)b (behaviour) and looking to attribute blame.

“But as the Supreme Court explained section 1(2)(b) is conduct based rather than fault based, and the behaviour complained about does not have to have caused the breakdown of the marriage.

“I think there has been a lot of misconception in the interpretation and application of the law.

“For example, a government website giving the public advice about issuing a petition provided a commentary on section 1(2)b. This stated that in order to succeed on the fact of unreasonable behaviour you have to prove quite serious fault and gave the example of domestic violence.

Linguistic trap

“The point made in the Supreme Court is that in using the expression ‘unreasonable behaviour’, lawyers and judges fell into a ‘linguistic trap’. They saw the behaviour in terms of having to prove fault when this was not necessary.

“I think that over time this misconception became commonplace. Because there are very few contested divorces the lawyers didn’t have to think about what section 1(2)b actually meant when they filled in a divorce petition. No contested divorce case went to the House of Lords and it took the Supreme Court to provide judicial guidance.”

Contested divorce cases are rare. In the Court of Appeal the President of the Family Division said that of the 114,000 divorce petitions in 2016, only 800 answers were filed. He estimated around 0.015% – less than 17 – went to a final, contested hearing.

Mr Dyer has acted in just five such contested hearings in 35 years at the Bar.

He said: “Although the case of Owens caught the nation’s attention, in reality it is relevant to only a very small minority of cases.

“It was a big noise about a very small area of family law.”

The second part of this interview with Nigel Dyer QC covering the Government’s divorce law consultation will be published shortly.

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Divorce law reforms must be for the better

Divorce law reform: Supreme Court 2

Supreme Court’s decision to deny Tini Owens a divorce has understandably hit a nerve with many.

Five judges of the UK’s highest court this week upheld rulings by the Family Court and the Court of Appeal that she must stay married despite her complaint that the marriage is loveless and has broken down.

Divorce law reform

The case has provoked widespread comment about the need for divorce law reform and a move to ‘no fault divorce’.  Many in the legal profession have described it as a missed opportunity.

The Supreme Court, however, was never likely to grant the divorce. As its president Baroness Hale had said previously, the court is there to interpret and apply laws made by Parliament, not to change those laws.

Nevertheless, Lady Hale said she found the Owens divorce case “very troubling”.

She said “expectations” of whether it was “reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved” had changed over the past half century.

“The social norm which has changed most obviously is the recognition that marriage is a partnership of equal,” she said.

Question for Parliament

In delivering the judgement, Lord Wilson, said the justices had ruled against Mrs Owens “with reluctance”.

He said the “question for Parliament” was whether the law governing entitlement to divorce remained “satisfactory”.

So there we have the ball once again passed squarely back to the law makers.

Will they now find the resolve and time to re-evaluate laws that have stood for half a century?

What must be ensured amid the clamour of this particular case is that any changes improve the system and are not simply a knee jerk reaction.

No one could argue that what we have now is perfect.

And some have already said that what we may see next are instances where divorcing parties feel they must embellish grounds for divorce to ensure that applications proceed without issues as in the Owens’ case. That would not be good for anyone.

Under current law there is only one legal ground for divorce, that the marriage has irretrievably broken down. The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Hence, Mrs Owens will have her divorce five years post-separation in 2020. In the meantime changes in society rightly mean there is no stigma associated with her separated status.

So how would replacing this with a ‘no fault’ option improve Mrs Owens’ lot? Surely Mr Owens should still have a say…it’s his marriage too.

And what of the cathartic experience of laying blame; such an acknowledgement can be a powerful part of the healing process for some.

Can ‘one size fits all’ work?

Is society at a point where it is appropriate for one party to turn their back on a marriage because they have decided it’s no longer for them. Are we ready to dispense with the notion of  ‘for better or worse’; the principle of commitment?

None of this is intended to minimise the angst felt by Mrs Owens, or anyone else who sadly finds themselves in a similar situation. But given that no two relationships are the same can a “one size fits all” approach to divorce, really work?

The complex nature of relationships means that every couple’s breakdown brings with it its own challenges.

In asking Parliament to move us away from something imperfect and ripe for reform this should not be forgotten.

We’ve previously written about no fault divorce here.