Legislation which would introduce ‘no fault’ divorce into the laws of England and Wales has been backed by MPs, not only receiving wide support in Parliament but also broadly welcomed by the relationship charity Relate and family lawyers.
The Divorce, Dissolution and Separation Bill received 231 votes in favour to 16 against, following a debate in the House of Commons on 8 June 2020.
The current law
Under the current law in England and Wales, the only ground for divorce is that a marriage has irretrievably broken down. This must be proved by one of five facts;
- unreasonable behaviour
- separation for two years when both spouses agree to the divorce
- separation for five years when one spouse disagrees
In order to start divorce proceedings immediately, one spouse must allege that adultery, unreasonable behaviour or desertion has taken place. This requires one spouse to place blame on the other for the irretrievable breakdown of the marriage. The feeling of being blamed frequently increases tension and creates avoidable conflict between a divorcing couple from the outset.
The facts based on separation require a married couple to live apart for at least two years before being able to issue divorce proceedings. This is a significant time to wait if a person wishes to get a divorce.
Reforming the law
The recent case of Owens v Owens added impetus to the movement for change. After a 40-year marriage, Mrs Owens wanted to divorce her husband on the basis of his unreasonable behaviour. However, Mr Owens contested the divorce and did not accept that the marriage had irretrievably broken down. This meant that Mrs Owens could only begin divorce proceedings by living apart from him for five years.
The case went to the Supreme Court, which ruled in Mr Owens’ favour. However, this clearly highlighted a flaw in the current system and sparked debate as to whether the divorce process should be changed. Subsequently, a government consultation was introduced to review the current law.
The new law
In reality, in many instances it is not solely the fault of one spouse that a marriage has irretrievably broken down. No-fault divorce reflects this by removing the “blame game”.
Under the new law, a spouse will simply be able to make a statement that the marriage has broken down irretrievably. They will no longer be required to prove this by providing evidence of their spouse’s behaviour or by living apart.
It would also remove the ability to contest a divorce. There must also be a minimum six month period between a divorce petition being lodged and the divorce being finalised, to allow parties to reflect and have the opportunity to turn back.
The new law would also allow couples to apply jointly for a divorce if the decision to divorce was mutual.
It is hoped that new system will help to make the divorce process less painful for those involved in what is an already highly stressful process.