A review of marriage and divorce law in England and Wales?

The Times reports (£) that the new Justice Secretary, David Gauke, has agreed to look again at the case for ‘no-fault’ divorce. According to the report, he told the paper:

“I know The Times has campaigned vigorously for reform of family law, including fault-based divorce, and a number of respected figures have voiced their support for change. I acknowledge the strength of feeling on this issue and will study the evidence for change.”

However, he added that he would not “rush to a conclusion”.

And as we noted, on Friday the Home Secretary told the Commons during the second reading debate on Tim Loughton’s Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill that the Government would conduct a review of the law on civil partnership.

Sir Paul Coleridge, former High Court judge in the Family Division and chairman of the Marriage Foundation, welcomed the Justice Secretary’s comments, suggesting that the refusal of Government to put in place an alternative to the Family Law Act 1996 twenty-one years on was “both pusillanimous and a total abrogation of duty”:

“We need a full public and parliamentary debate rather than forcing judges to continue reinterpreting the law in light of changes to our society in the past 50 years.”

All of which is extremely interesting, given that one of the advocates of no-fault divorce is the President of the Supreme Court herself: in 2014, Lady Hale told the Evening Standard that, in a reformed system:

“you would make a declaration that your marriage had irretrievably broken down and if you were still of that view a year later, then you get your divorce. That’s that.“

As to the other end of the process – the formation of marriage – the Law Commission produced a scoping paper in December 2015 at the Government’s request setting out its preliminary findings on the law governing how and where people can marry in England and Wales. In September 2017, however, the Minister of State for Justice, Dominic Raab, wrote to the Commissioner in charge of the project, Professor Nick Hopkins, to say that the Government was not taking the project forward because priority was being given to reforms to address the increase in public and private family law cases currently putting pressure on the justice system.

So might the Government now be coming round to the view that the law on the formation and ending of marriages and civil partnerships needs reform? And might the Commission’s project now go ahead after all? And could the impending Supreme Court appeal against the judgment in Owens v Owens [2017] EWCA Civ 182 – in which the husband refuses to divorce the wife because he does not believe that their marriage has broken down irretrievably and in which the Court dismissed Mrs Owens’ appeal with, in the words of Hallett LJ at [99], “no enthusiasm whatsoever” – have anything to do with the new Justice Secretary’s decision?

Cite this article as: Frank Cranmer, "A review of marriage and divorce law in England and Wales?" in Law & Religion UK, 5 February 2018, http://www.lawandreligionuk.com/2018/02/05/a-review-of-marriage-and-divorce-law-in-england-and-wales/

 

 

 

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