‘No fault’ divorce is on its way …. eventually!

After many twists and turns over the past few years, and seemingly forever delayed, new legislation is coming into force next year enabling separating couples to divorce more amicably rather than playing the traditional blame game.

Since the Matrimonial Causes Act came into force in 1973, the only way in which one party could proceed with a divorce would be to file a petition at court on the ground that the marriage had ‘broken down irretrievably’ which had to be supported by one of the following five facts:-

• Adultery
• Behaviour
• Desertion
• Separation for two years with the consent of the other party
• Separation for five years, with no consent.

This system has often been considered unsatisfactory because it has required one half of the couple to lay blame or ‘fault’ at the door of the other by using one of the first two facts in order to proceed with a divorce; this inevitably raised the temperature and caused more acrimony.

Alternatively, the parties have had to wait at least two years, but often five years, to proceed with a divorce under one of the other facts. This has created different frustrations and obstacles as separating couples have been unable to move forward with their lives quickly.

In practice, I have frequently been asked by clients whether they could petition for divorce on the ground of ‘irreconcilable differences’ and time and time again I have had to deliver the bad news that this was a divorce concept adopted in the USA but not part of our legal system in England and Wales.

So how has change come about?    

The landmark case, Owens v Owens [2018] EWCA Civ (182) / UKSC41, attracting much publicity in the press, involved Mr and Mrs Owens, a couple in their 60s who had been married for over 30 years. Mrs Owens was unhappy in her marriage and wanted to move on. She felt that her marriage had run its course and whilst Mr Owens hadn’t done anything significantly wrong, they had drifted apart over time. She had met someone new and wanted to make a fresh start by having a divorce.

Mrs Owens filed a relatively mild divorce petition at court, stating that the marriage had irretrievably broken down due to her husband’s unreasonable behaviour towards her over a period of time so she could no longer be reasonably expected to live with him. Perhaps to her surprise, Mr Owens rigorously defended the petition on the basis that he denied that his behaviour was unreasonable, the parties could still live together, and he contended that the marriage hadn’t broken down irretrievably.

After considerable legal expense on both sides, the Supreme Court decided that Mrs Owens had failed to reach the necessary threshold to prove that the marriage had broken irretrievably and therefore rejected her petition for divorce.

The apparent injustice of locking Mrs Owens into an unhappy marriage for many more years prompted cries from all corners for reform. The need for legal change on divorce law then gathered momentum with the introduction of the Divorce, Dissolution and Separation Bill 2020 which was originally intended to come into force later that year, but after several false starts, is due to come into force early next year.

What are the changes under the new law?

The key changes under the new system are as follows:

• Introduction of a new option for joint applications for a divorce where the parties agree that the marriage has broken down irretrievably
• A sole applicant will still be able to apply for a divorce, even where their spouse doesn’t agree with the removal of the requirement to prove any ‘fault’ within the application for a divorce; to which the opponent can potentially object. Hence opening the door for “no fault divorce”.
• Terminology changes. The terms decree nisi and decree absolute will become obsolete and be replaced with conditional divorce orders and final divorce orders. The petitioner will also be known as the applicant in future.
• Introduction of a new mandatory minimum period of 20 weeks from the date of the initial application to the obtaining of a conditional divorce order.
• Retention of the six-week cooling off period between the obtaining of a conditional divorce order and a final divorce order.
• All of the above reforms will be extended to cases involving the dissolution of a civil partnership and judicial separation cases.

These new changes to current divorce law, subject to any further delays, are due to come into force on 6 April 2022.