Fault-free divorce, even court free divorce, are both available in France but not here. As a practitioner dealing with cases every day which straddle both jurisdictions I am struck by how different our laws are in what are hailed as close societies which have many aspects of shared history. But we haven’t got to where we have in the same way. Our social, religious and political differences are laid bare in family law.

English attempts to bring in fault

Fault-free divorce failed in 1996 when the John Major government abandoned attempts (in the Family Law Act 1996). This was in the face of a small “c” conservative backlash from the church and sections of the media.

Divorce on irretrievable breakdown by mutual consent France. Not England.

A case in the Supreme Court to be heard soon (Owens v Owens) will highlight need for reform to fault based divorce. The husband in that case was opposed to the divorce and the judge agreed the wife had not proved the particulars of unreasonable behaviour. That decision at first instance, which is under appeal, forces the wife to wait 5 years after the separation before she can get a divorce. I believe the Supreme Court is likely to rule that if one party cites examples of bad behaviour by the other party and those are difficult for the requesting spouse to live with, then the marriage is over. There is no tougher objective standard needed – although our outdated law is difficult to interpret.

Our divorce laws are bound up with traditional religious notions, an influential state established church, and sections of a socially conservative press that shout loudest. It is worth remembering that we have no recognised form of civil partnership for heterosexual couples either. That also is the subject of an imminent appeal Supreme Court hearing (Steinfeld and Keidan).

Yes, there is a theme here: a 25 even 50-year stagnation in English family law reform.

The courts rather than parliament are doing sticking plaster reform. The only major reforms for almost 50 years have been the Children Act 1989 to put children law on a modern footing and a judge led move to give greater, but not full, recognition to prenuptial agreements (Radmacher case). Again, this is case law made by judges, and has not been put on the statute books by parliament – so we cannot advise clients that a prenuptial “will” be upheld. We can say only “probably” or “as part of the judge’s discretion it will carry weight”. That is not good enough and does not respect private autonomy to make agreements.

In that period the French have introduced civil partnerships (2001) for all who want them, no fault divorce (as early as 1975), and gone further with the introduction of court free divorce on 1st January 2017. In that reform, the divorce and financial arrangements surrounding it are registered before a French notary. That latest reform is not terribly easy for my international couples who may need a full court agreement to be upheld across borders, but the intent to deformalise divorce is there.

The direction and speed of travel is clear: in France it’s “une ligne à grande vitesse”, compared with slow coach or no reform here.

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