Separating couples will soon be able to obtain a divorce without having to blame each other for the breakdown of their marriage.
In April 2022, the Divorce, Dissolution and Separation Act will come into play, introducing the new law on no fault divorce in the UK. This reform means that ‘fault’ and ‘blame’ will be removed from the divorce process.
Current Position
Under the current law, the only way for couples to obtain a divorce is to prove that their marriage has irretrievably broken down, and this has to be evidenced by one of the following ‘five facts’-
- Unreasonable behaviour
- Adultery
- Desertion for at least two years
- Separation for at least 2 years with the consent of both parties
- Separation for at least 5 years if one party disagrees
This means that those who cannot prove their marriage has broken down due to one of the above-mentioned five facts are unable to get a divorce and must remain married to their spouse.
Under the current divorce process, a divorce petition is usually filed by one spouse. If the other spouse disagrees with the divorce or the reasons for it, they can contest the divorce and even potentially prevent it.
A notable case is the case of Tina Owens. In May 2015, Mrs Owens filed a divorce petition, stating that the marriage had irretrievably broken down based on ground of unreasonable behaviour. Mr Owens defended the case, arguing that the examples of unreasonable behaviour that Mrs Owens had provided were insufficient. The Judge found that whilst the marriage had irretrievably broken down, the examples given of his behaviour were not sufficient enough to satisfy the test, and therefore dismissed the petition. Mrs Owens’ appeals were subsequently dismissed by the Court of Appeal and the Supreme Court.
The outcome of this case meant that Mrs Owens had to remain married to her husband until she could rely on the ground of five years separation.
This case contributed to the pre-existing discussion of reforms being needed in the law on divorce.
How will no-fault divorce work?
The new legislation will introduce the no fault divorce process. This means that couples will no longer have to make allegations about their spouses conduct to obtain a divorce.
The parties are still required to prove that their marriage has irretrievably broken down, however it will remove the requirement to establish one or more of the ‘five facts’ to prove irretrievable breakdown.
The new legislation will also introduce ‘joint applications’, where couples can approach the court on a joint basis for a divorce and not blame each other. Couples can both agree that the relationship has irretrievably broken down and this will remove the position of ‘Petitioner/Respondent’. Equally, one spouse will still be able to submit a sole application for divorce if the other does not agree.
Archaic language such as ‘decree nisi’ and ‘decree absolute’ will be replaced with simpler language, such as ‘conditional order’ and ‘final order’.
Positives
There are many positives for couples who will divorce through the no fault divorce process. A change in law would enable a couple to end their marriage with mutual respect by eliminating the element of blame. This will hopefully provide a better environment for families to move forward, especially in cases where children are involved.
Additionally, the introduction of no-fault divorce will hopefully stop divorcing couples having to make unnecessary allegations against one another and instead help them focus on separating amicably. Clients can focus on reaching a resolution as quickly and harmoniously as possible.
Until no fault divorce comes into practice, it is not possible to say whether the legal change will be easier for family law practitioners. It should eliminate the focus on allocating blame and hopefully allow practitioners to focus on the important issues of child arrangements and dividing the matrimonial assets. It could also allow legal professionals to deal with matters more swiftly, allowing the divorce process to be simpler and more cost-effective for clients. Couples who wish to divorce but their reasons do not fall into one of the current ‘five facts’ will now be able to divorce without having to adapt their reasons to fit into the boxes.
No fault divorce will hopefully remove the element of negativity in the divorce process and achieve speedier, positive results, without unnecessary conflict.
Negatives
However, there are some that feel that no fault divorce isn’t the best idea. Detractors have pointed out that no-fault divorce makes it too easy for couples to split, and this may lead to an increase in divorce rate.
There are also those who feel that there is a benefit from officially being able to blame their spouse for the breakdown of their marriage. Upset parties who have been hurt by their spouse and have experienced betrayal and suffering may feel that it is important to have an official document setting out the reason why the marriage broke down.
Divorce is complicated enough with the process of separating homes, finances and child arrangements without including fault and blame. In 2022, it can be recognised that in many divorces, there is no need to blame anyone for the breakdown of a marriage.
