Over the last few years, the introduction of no-fault divorce has gained much media attention. In this article, family partner Claire O’Flinn and family associate Carys Mason discuss the new no-fault divorce law, which came into force on 6 April 2022, and outlines what this means for separating couples.
Divorce reform is not a new subject. Many key individuals and practitioners within the family law sphere have advocated for change for over 20 years.
In 1996, the Government introduced the Family Law Act 1996 which included the concept of no-fault divorce; however, that provision was later repealed. Historically, divorce law reform has not been considered a priority. In fact, the Matrimonial Causes Act 1973 remains the governing legislation.
The previous position
Before the introduction of the no-fault divorce, the law set out that in order to apply for a divorce, a spouse needs to demonstrate that their marriage has broken down irretrievably, by relying on one of five facts. These facts are as follows:
- Unreasonable behaviour;
- Two years’ separation with consent; and
- Five years’ separation.
With exception to desertion, the remaining criteria are either based upon “fault” or a period of separation. Where an individual wishes to commence divorce proceedings but they have not been separated from their spouse for at least two years, they are therefore left with the fault-based facts of adultery or unreasonable behaviour to demonstrate that their marriage is broken down beyond repair.
Adultery can be tricky as it requires either:
(i) the offending spouse to admit to the adultery within the divorce process; or
(ii) the applicant to provide proof of the adultery being committed.
Many individuals therefore found themselves with little choice but to proceed with the fact of unreasonable behaviour. The test for this criteria is: Has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with them?
An individual proceeding on this fact is required to set out examples of their spouse’s unreasonable behaviour within the divorce application, such as domestic or emotional abuse, family disputes, inappropriate behaviour, etc.
Why has a no-fault divorce now been introduced?
The previous divorce legislation did not reflect modern family dynamics and situations and the case of Owens v Owens, which made its way through the court system and ultimately to the Supreme Court in 2018, highlights many of these issues.
In this case, Mrs Owens petitioned for divorce from her husband in May 2015, seeking to demonstrate that their marriage had broken down irretrievably on the basis of Mr Owens’ unreasonable behaviour. She described her marriage as “unhappy” and “wretched”, amongst other things. Mr Owens chose to defend the petition, stating that his behaviour could not be deemed as unreasonable within the context of their marriage, and the examples Mrs Owens gave of his behaviour were not sufficient to satisfy the test referred to above.
Mr Owens was ultimately successful, and the Supreme Court ruled that the behaviour Mrs Owens sought to rely on was not sufficient. Whilst the Supreme Court Justices agreed that the outcome was not at all satisfactory for Mrs Owens as her marriage had clearly broken down, they were bound by the law.
Mrs Owens therefore had to remain married to Mr Owens until 2020 (by which time she was aged 70), when she could rely on the fact of five years’ separation, which did not require his consent.
The new law
The Ministry of Justice confirmed in July 2018 following the decision in Owens v Owens that divorce reform would be considered further.
As a result, the Divorce, Dissolution and Separation Bill was first introduced to Parliament in June 2019, and finally received Royal Assent in June 2020. It came into force on 6 April 2022 and will introduce of “no-fault” divorce, as follows:
- The five facts set out above will be replaced with a requirement to provide a statement of irretrievable breakdown, which the separating couple can choose to make jointly if they wish.
- The possibility of contesting the divorce application will be removed.
- The language used within the divorce process will be plain English, avoiding legal jargon.
- There will be a minimum period of 20 weeks from the start of divorce proceedings to the conditional order of divorce being granted, the idea being to provide separating couples with more time to agree other arrangements in connection with their separation.
There is hope within the family law profession that in removing the element of blame in the divorce process, unnecessary conflict can be avoided.
Instead, a change in the law will help ensure that lawyers can move their attention away from proving fault, and can focus their expertise in assisting individuals to deal with the other arrangements that need to be made following separation, particularly in relation to financial matters and arrangements for any children. These aspects can be complex and require considerable thought and advice. By using a non-confrontational, positive approach, lasting agreements can be reached looking to the future, rather than attributing blame in the past.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.