Revolutionising divorce law through the introduction of no-fault divorce.
After nearly 50 years of an outdated divorce process, we are witnessing a revolutionary shift in the way a marriage can be terminated. As the law in England and Wales currently stands, a divorce requires one spouse to file for divorce, citing a legally recognised reason for the action. However, after extensive criticism from family law professionals and campaigners this is set to change with the implementation of The Divorce, Dissolution and Separation Bill, which became an Act of Parliament on 25th June 2020.
Currently, a divorce must be petitioned on the grounds that there is an irretrievable breakdown of the marriage under The Matrimonial Causes Act 1973. The irretrievable breakdown must be due to one of the following reasons: adultery, unreasonable behaviour or desertion. If one cannot be established, the couple can either mutually agree to separate for two years or can separate for five years without the consent of the respondent. Only after one of these five grounds has been established can a divorce then be successfully processed.
The inability to choose a more emotionally, time and financially efficient process can lead to the petitioner unfairly attributing one of the aforementioned - character-tainting - actions to their spouse.
For many couples, adultery, unreasonable behaviour or desertion may not apply, resulting in an increasingly complex situation as separation for two years may not be a viable option. The inability to choose a more emotionally, time and financially efficient process can lead to the petitioner unfairly attributing one of the aforementioned - character-tainting - actions to their spouse. The current law exacerbates conflict and creates greater instability for any children involved, which is a worrying reality. The new law seeks to put an end to the ‘bitter blame game’ by removing the requirement to prove fault. Justice Secretary & Lord Chancellor Rt Hon Robert Buckland QC MP stated that “by sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives”.
The Supreme Court case of Owens v Owens (2018) highlighted the need for reform. Mrs Owens had petitioned for divorce, stating that her marriage had broken down irretrievably as her husband had ‘behaved in such a way that [she] cannot be reasonably expected to live with [him]’. Mr Owens rejected the claim, responding that ‘although never emotionally intense, the marriage had been successful’. The lower courts ruled that no unreasonable behaviour could be identified as the accounts provided were ‘flimsy’ and ‘exaggerated’, yet she appealed. The Supreme Court reluctantly decided it was not its role to allow the divorce as this would require fundamentally changing legislation. However, the Justices used the case as an opportunity to highlight the unfair results of the existing law, with Lord Wilson recognising that the requirement to make allegations about the behaviour of one’s partner can ‘inflame their relationship, to the prejudice of any amicable resolution of the ensuing financial issues and to the disadvantage of any children’.
The case stands as a fine example of the reasoning behind the position of the family law group Resolution, which has been campaigning for no-fault divorce to be implemented for more than 30 years. In a survey conducted by the group, 90% of family law professionals agreed that the current law does not serve to reduce conflict between partners. Resolution hopes that family lawyers will now be able to help couples reach an amicable and less unnecessarily contentious agreement.
“90% of family law professionals agreed that the current law does not serve to reduce conflict between partners”
As a result of the reforms, divorce has the potential to become a less bitter, hostile and accusatorial process. This will be done with a simple statement that the marriage has broken down irretrievably acting as evidence. There will also be a minimum of six months before the divorce can be finalised, giving couples the opportunity to reflect further with careful consideration.
Notwithstanding the positive direction of the change, not all have been supportive, particularly those eager to protect the sanctity of the institution. If a divorce is to be petitioned on the sole basis that the marriage has broken down irretrievably and the respondent expresses the desire to remain married, their rights and feelings could be viewed as disregarded. Based on the existing law, if the petition is contested, the divorce can be postponed for two or five years. However, this serves to unnecessarily stretch out an already emotionally laborious process.
In addition, there are concerns regarding an increased divorce rate once the new legislation has been implemented. This was seen across the US as California became the first state to implement no-fault divorce in 1969, with other states following its lead. From 1960 to 1980, the divorce rate in the US more than doubled. However, we cannot take this at face value as there were various social changes which contributed to the increase including the sexual revolution, an increase in women’s employment rates and a growing surge of independence inspired by the ongoing feminist movement. Also, as the number of countries adopting no-fault divorce has increased, there has not been a sustained increase in divorce that would substantiate these claims. In fact, Sweden has seen a fall in the number of divorces from 2014 to 2017, highlighting that its availability does not necessarily encourage divorce. Thus, in England and Wales, the increase is unlikely to be as dramatic as that seen in the US decades ago, although there may be a short-term increase as couples who have been waiting for this change use it to their advantage.
The modernisation of divorce law marks a long-awaited reduction in the stigma associated with divorce. The marital breakdown no longer needs to be clouded by guilt and shame as the legal obligation to force blame onto the other is removed. Yes, there will still be divorce cases in which hostility and resentment towards one another is natural but the long-awaited reforms ensure this is no longer an inherent feature of divorce proceedings.
The marital breakdown no longer needs to be clouded by guilt and shame as the legal obligation to force blame onto the other is removed.