No Fault Divorce – putting a stop to the blame game

The Divorce, Dissolution and Separation Bill 2020

A brief history of divorce

Until the introduction of the current legislation in 1969 , a spouse could petition on the grounds of adultery, cruelty, desertion or incurable insanity. These grounds were termed “matrimonial offences” and were required to be proven by the petitioner.

Both World Wars caused a spike in divorces which combined with the social changes of the 1950’s and 1960’s, amounted to pressure on the UK government to enact change. That pressure resulted in the Divorce Reform Act 1969 which removed the term “matrimonial offences” and introduced further grounds which allowed a party to petition on the basis of a period of separation. The 1969 Act was consolidated into the Matrimonial Causes Act 1973 which is our current law.

The Matrimonial Causes Act 1973

To obtain a divorce in the UK, parties must have been married for at least one year. The only ground for divorce is that the marriage has irretrievably broken down; this is proven by one of the following five facts:

• their spouse has committed adultery and, as such, they find it intolerable to live with them;
• their spouse has behaved in such a way that they cannot reasonably be expected to live with them.
• their spouse has deserted them for at least two years;
• if their spouse consents to the divorce, the parties have been separated for at least two years;
•  if their spouse does not consent to the divorce, the parties have been separated for a continuous period at least five years.

As the law currently stands, unless the parties are able to rely on a period of separation of at least two years with consent or five years if the other party does not consent, then they must rely on the fault of the other party.

The current law serves to exacerbate conflict between parties, which then sets the tone for the approach to child arrangements and financial remedy. It is therefore not surprising that family law practitioners have been calling for change for decades.

Owens v Owens

Whilst the pressure was mounting, the trigger for change proved to be the Supreme Court case ofOwens v Owens [2018] UKSC 41.

The facts in the case of Owens v Owens are not dissimilar to many divorce cases, in that the wife, Mrs Owens filed a divorce petition in 2016 based on the only available ground for divorce which is that the marriage has irretrievably broken down. Mr Owens relied upon the most commonly used fact, which is that that her spouse had behaved in such a way that she cannot reasonably be expected to live with him’ and Mrs Owens gave particulars of incidents evidencing that fact.

What differentiated Owens v Owens from most divorce cases, was that in the large majority of cases, a divorce passes through court without any issue. in this case Mr Owens defended the petition on the basis that the particulars of behaviour relied upon by Mrs Owens were not sufficient to meet the test i.e.. that the marriage has irretrievably broken down. Whilst the Judge found that the marriage had broken down, he agreed with Mr Owens that the particulars of behaviour used did not meet the threshold and dismissed the petition.

The wife appealed the decision and the Court of Appeal returned to question posed in the legislation which is, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? The Court of Appeal was satisfied that the first instance Judge had correctly applied the law and Mrs Owens’ appeal was dismissed.

The wife again appealed the decision in the Supreme Court in July 2018. Whilst they acknowledged the wife’s plight and that the decision troubled them, they recognised that their role was to interpret and apply the law laid down by Parliament. They therefore reluctantly dismissed the appeal and invited Parliament to reconsider the law on divorce.  The impact on Mrs Owens of this was that she had little prospect of dissolving her marriage until five years had passed from the initial separation. This effectively prevented her from asking the Court to intervene to divide the substantial assets of the couple between herself and Mr Owens.

The decision in Owens v Owens demonstrated the need for Parliament to re-examine the current statute and inspired renewed pressure.  That decision made clear to practitioners that until such change that the law was amended, that petitioners would need to be encouraged to use more extreme examples of behaviour to ensure that they met the threshold to persuade the court that the marriage had irretrievably broken down. The impact of this was to either increase the animosity between the parties or force a party to remain in a marriage that they no longer wish to be in.

The Divorce, Dissolution and Separation Act 2020

Parliament eventually responded to the mounting pressure and a Bill was introduced on 12 June 2019. The Bill received Royal Assent on 25 June 2020 and the Divorce, Dissolution and Separation Act 2020 was passed. The Act was initially intended be operative from Autumn 2021 but had been pushed back. It has now been confirmed that Parliament are working towards the Act coming into force on 6th April 2022. The new law will apply to both divorce and the dissolution of civil partnerships.

The most significant change to the legislation is the that the petitioning party will no longer need to establish fault The new law will allow one party, or a couple, to jointly petition for divorce, which will be achieved by the making a statement of irretrievable breakdown, which will not require any explanation, and which cannot be contested. 

The new legislation has disposed of the terms “decree nisi” and “decree absolute” and introduced plain English terminology which is fit for the modern age. The decree nisi will now be the “conditional divorce order” and the decree absolute the “final divorce order”.

The changes to the law are as follows:

1. The requirement to meet one of the ‘five facts’ will be removed, and the parties will only be required to produce a statement of irretrievable breakdown.  
2. It will no longer be possible for a spouse to contest the divorce, even if only one party believes that the marriage has irretrievable broken down.
3. Either one party, or a couple, will be able to jointly petition for divorce,
4. The new legislation has disposed of the terms “decree nisi” and “decree absolute” and introduced plain English terminology which is fit for the modern age. The decree nisi will now be the “conditional divorce order” and the decree absolute will be the “final divorce order”.
5. An extended minimum timeframe of 20 weeks has been introduced, which is intended to allow the divorcing couple to have a period to reflect on the decision to end the marriage.

The procedure:

Conclusion

The introduction of the The Divorce, Dissolution and Separation Act 2020 will allow parties to have an amicable separation without the need of assigning blame. Thiswill encourage a non-confrontational approach, which will set the precedent for how parties approach other aspects of the separation, including any child arrangements and financial settlement.   As such, it has been very widely welcomed by the profession. At TV Edwards, we believe that this will make a real difference both to the harmful conflict that fault-based divorce encouraged, and to the cost to individuals of obtaining a divorce, as the new procedures will be much more accessible.

The changes will also bring to an end the small number of contested divorce proceedings, where one party either seeks to prevent the divorce from happening at all (as Mr Owens did), or tries to “cross petition”, effectively saying that the divorce should be granted to them, and for different reasons. Contested divorce proceedings are generally expensive and can increase the costs of obtaining a divorce from a few hundred to many thousands of pounds. For that reason, TV Edwards welcome this development as a great improvement for our clients.

Should you wait?

Until the new legislation comes into force in April 2020, separating parties will be required to use the existing divorce procedure.           

On the one hand, the benefit of waiting is that removing the requirement to blame is likely to result in less contention between the parties, which in turn will reduce animosity between parties who are engaging in discussions regarding financial settlement and child arrangements.

However, if an agreement has been reached in respect of the division of finances and the parties wait to start the divorce proceedings under the new law, they will be unable to obtain a court order recording that agreement. This means that the decision will not be legally binding on the parties. In addition, if there is a dispute in respect of the finances, the parties would be unable to apply to the court for assistance until the divorce process has been started. That delay in resolving the dispute could serve to further increase animosity between the parties.

It is also worth considering that whilst the government have announced that they are working towards 6 April 2022, there is a risk that date could be pushed back, as the government deals with other priority issues.

Essentially, the choice on whether to wait for the new law will depend on the circumstances. If you are considering applying for a divorce and want to discuss the right option for you, please contact Eleanor on eleanor.beckett@tvedwards.com or 020 3440 8092.