Bye bye blame game - seven things you NEED to know about the new ‘No Fault Divorce’

Posted: 20/07/2021

It’s been a long time coming but, after decades of campaigning by Resolution and other interested bodies, the rather arcane law relating to divorce has finally been updated, procedures amended and fault swept away as a basis for divorce in England and Wales. Under current legislation, one spouse or civil partner must begin divorce proceedings against the other, proving to the court that there has been an irretrievable breakdown of the marriage. The person who begins proceedings must prove one of the following five ‘facts’ to satisfy the court of the irretrievable breakdown: adultery, unreasonable behaviour, living apart for more than two years (with agreement), living apart for more than five years (without agreement) or desertion. In reality, the basis of ‘unreasonable behaviour’ is relied on in the majority of divorces. However, it is hugely unhelpful to the parties and any children to have to make allegations of fault. The so-called blame game which the current law requires often leads to a more acrimonious divorce. The new legislation enables couples to commence divorce proceedings without the need to blame the other party for any wrongdoing.

Divorce law modernisation has been on the cards for many years. It was as far back as 1996, that the government first attempted to introduce no fault divorce (in Part II of the Family Law Act). However, those provisions were never enacted due to lobbying from certain sections of the media and religious groups and that part of the Act fell away when it was later repealed.

Despite this setback, momentum for divorce law reform has continued to grow, and the urgent need for change was highlighted in the 2018 Supreme Court case of Mr and Mrs Owens.

The Owens case received a great deal of press coverage. Mrs Owens asked the court for a divorce at a time when she had lived apart from Mr Owens for over two years but, because he would not consent to a divorce, she had to make allegations of fault against him to divorce. In order to minimise the acrimony between the parties, Mrs Owens cited a few examples of Mr Owen’s behaviour to illustrate why Mrs Owens felt she could not live with Mr Owens any longer and why she felt it was his behaviour that had caused the marriage breakdown. Mr Owens did not agree and therefore he defended the divorce proceedings. Defending a divorce is rare and only happens in less than 2% of cases. Defended divorce proceedings entail a court hearing (in contrast to undefended divorces which are paper-based). Despite the fact that Mrs Owens “beefed up” her application to cite 27 more specific allegation of Mr Owens’ behaviour by the time the case went before the judge, the court found the allegations to be “flimsy, hopeless and scraping the barrel”. The court was not satisfied that it was Mr Owens’ behaviour that had caused the marriage to break down.

Mrs Owens appealed that decision in the Court of Appeal. She was unsuccessful, although notably Sir James Munby who was, at the time, the President of the Family Division referred to the divorce process as involving hypocrisy and intellectual dishonesty. Mrs Owens ploughed on and appealed to the Supreme Court. The Supreme Court found itself compelled as a matter of law to require Mrs Owens to remain married until the couple had been separated for five years. Lady Hale stated “I have found this a very troubling case. It is not for us to change the law laid down by parliament. Our role is only to interpret and apply the law that parliament has given us.” By this time, Mrs Owens had been separated from her husband for three years but, without his consent to the divorce proceeding, would have to wait for a further two years to get divorced.

The case was the starting point for Penningtons Manches Cooper’s report Escaping the Labyrinth, which examined divorce law in England and Wales and the state of play around the world (as at 2018). It highlighted 21 jurisdictions to show the huge variety of approaches to divorce around the globe. Divorce was found to be more straightforward in many other countries including Chile, India, China, Russia and Argentina than in England and Wales.

In July 2018, Baroness Butler Sloss introduced a private members bill in the House of Lords inviting the Lord Chancellor to review the law of divorce and in particular the fault-based element. By spring 2019 David Gauke, government minister, had announced that legislation would be introduced to remove fault-based divorce so that spouses could move on constructively. The result is the Divorce, Dissolution and Separation Act 2020. The new law gained Royal Assent in June 2020 but spouses and civil partners wanting to use it following separation will have to wait until 6 April 2022 when the procedural framework underpinning divorce has been amended to facilitate it. The new Act will remove the concept of fault in divorce and as a lawyer who has been advising on family law cases for nearly thirty years this is a positive step in the right direction.

Seven things you need to know about the new divorce law

1. Statement of Breakdown - There will no longer be a requirement to provide evidence of a ‘fact’ around behaviour or separation. This will be replaced with a requirement to provide a statement of irretrievable breakdown and no further evidence will be required. This statement can be provided solely or jointly.

2. Grounds for divorce - The new legislation will retain the need for ‘irretrievable breakdown’ as the sole ground for divorce.

3. Consent - There will no longer be a need to ‘consent’ to the divorce. The court will be satisfied with the statement of irretrievable breakdown as conclusive evidence that the marriage is over.

4. Length of divorce - There will still be the two-stage legal process analogous to the decree nisi and decree absolute stages, but couples will now need to wait a minimum of 6 months from making the application to final decree (20 weeks from application stage to first decree, 6 weeks from then to final decree). This provides a period for reflection and the opportunity to reconcile. Where divorce is inevitable, it will better enable couples to reach agreement on practical arrangements for the future such as for any children and resolution of their finances. Courts will retain the power to expedite the process where appropriate.

5. User friendly - The language of the new law will now be in plain English to be more user friendly. ‘Decree Nisi’ will be replaced with ‘Conditional Order’, ‘Decree Absolute’ will be replaced with ‘Final Order’ and ‘Petitioner’ will become ‘Applicant’.

6. Joint Application - There will now be an option of a ‘joint application’ for divorce alongside retaining the option for one party to initiate the process.

7. Civil Partnerships - The changes will also apply to the dissolution of Civil Partnerships.

Many couples are now choosing to initiate their divorce applications online which tends to be a much quicker process. The online court service is being amended and other procedural rules updated to ensure they are fit for purpose when the new law becomes available in April 2022. Currently, it is taking around two weeks for an online divorce application to be processed which is about half the time it takes to get a paper application through the court system.

The divorce reforms retain what works well in the existing divorce process and removes what stands in the way of resolving difficulties more amicably and simply for the majority of separating parties. If you would like further information, please do contact us so that we can advise you on the current and future law. It is important you seek advice at an early stage and waiting for the new divorce law to come into force may not be the best option for you.

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