No Fault Divorce
As an experienced divorce lawyer at Wellers Law Group, I often find myself advising clients that going through a divorce can be an incredibly difficult time. Day in and day out, I see the emotional strain the divorce process can have on separating couples and on their children. This process is very difficult for clients. What is also abundantly clear is that children cope better when their parents are able to separate amicably and effectively co-parent. Evidently, when emotions run high in divorce proceedings, other aspects of the divorce that need to be dealt with like finances and child arrangements can also become unduly protracted.
In my experience, if I were to ask a client to wave a magic wand, they would ask for the divorce to proceed on an amicable and fair basis. It is for these reasons that I welcome the introduction of a no-fault divorce, which will essentially end the blame game between couples wishing to divorce. I strongly believe that this in turn will also reduce the potential conflict moving forward, not only when dealing with divorce but also when dealing with the finances and child arrangements.
Currently, in this country there is one ground for divorce, and this is the irretrievable breakdown of the marriage. This ground needs to be supported by one of five facts, namely, adultery, desertion, unreasonable behaviour, two years separation with consent and five years separation, whereby no consent is required.
The law as it stands at present in England and Wales is outdated when compared with other jurisdictions. If a couple wants to divorce under the current legislation, they have to either wait to be separated for at least two years or rely upon adultery or unreasonable behaviour. Most couples do not wish to put their lives on hold for two years and more importantly they cannot afford to. Furthermore, when petitioning for a divorce based upon 2 years separation with consent, the Respondent can withdraw their consent at any time up to the date of decree nisi. Therefore, if a party wants to be awkward, I usually advise a client that it may be best to proceed on a different ground.
The majority of separating couples are usually left with no alternative but to petition for a divorce alleging behaviour or adultery. As a result of the current law, the majority of divorces are based upon behaviour. The test for ‘behaviour’ is subjective and it does not need to consist of extreme behaviour. A combination of less obvious behaviour can be sufficient. The behaviour cited is what the Petitioner deems to be unreasonable, rather than what the Respondent or the Judge deems to be unreasonable.
It is often very difficult in drafting particulars for an unreasonable behaviour petition, ensuring that the particulars are sufficient and robust enough for the Court to grant the divorce against trying not to cause too much animosity and upset between the parties. To this end, I always try and draft the particulars in a broad anodyne manner in the hope that the particulars will not be controversial and usually cite 5 or 6 examples of unreasonable behaviour.
A prime example of the problems with the current divorce process can be demonstrated in the case of Owens v Owens . This case involved Mr and Mrs Owens who married in 1978 and separated in 2012. The wife was 68 and the husband was 80. Mrs Owens initially wanted to petition for a divorce based upon two years separation with consent. However, Mr Owens refused to provide his consent. Mrs Owens was therefore left with no alternative but to petition for a divorce based upon Mr Owen’s unreasonable behaviour. Mr Owens defended the case, arguing that the examples given of his behaviour did not satisfy the requirements of s.1 (2)(b) Matrimonial Causes Act 1973. The Judge agreed and dismissed the petition. The case attracted wide public attention due to the interpretation of the law relating to ‘unreasonable behaviour’ particulars and Mrs Owen essentially being trapped in a marriage she did not want to be in. Lady Hale, Supreme Court president, stated that she found the case to be ‘very troubling’ but that ultimately it was not for Judges to ‘change the law.’
Following the case of Owens v Owens  the Ministry of Justice announced a consultation proposing the introduction of a no-fault divorce and to remove the right of a spouse to contest a divorce. The Government recognised that allowing Respondents to a petition to defend a divorce served very little purpose and often allowed abusive spouses the opportunity to continue their abusive conduct over the other party.
The Government’s Divorce, Dissolution and Separation Act 2020 received Royal assent on 25 June 2020 and is due to be implemented on 6 April 2022.
The new legislation will:
- Replaces the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown
- Remove the possibility of a spouse being able to contest the divorce.
- Introduces joint applications where the couple both agree that the relationship has irretrievably broken down. Alternatively, sole applicants will still be able to apply on their own if their partner does not agree.
- Update the terminology.
These changes will finally update our divorce laws. However, other reforms are still desperately needed in family law but at least this is a step in the right direction and one that I certainly welcome.