Divorce, dissolution and the end of the 'blame game'

The introduction of no-fault divorce is a long-anticipated reform in UK law. Currently, applicants in the UK must play the ’blame game’ to show that their marriage has broken down because one party is at fault. In April 2022 the Divorce, Dissolution and Separation Act 2020 comes inτο force, allowing and encouraging parties for the first time to petition jointly or independently for divorce without allocating fault.[i]


The no-fault approach is a modern, flexible alternative, which follows the procedure set by many international family law systems. Australia and Sweden are just two of the countries with a no-fault divorce system. Australia removed the fault element in 1975, under the Family Law Act, to encourage alternative dispute resolution and prevent conflicts.[ii] Similarly, in 1973 Sweden introduced their system in which the parties have the right to divorce even without a period of separation.[iii] The UK seemed to be far behind in removing the fault element of divorce, but the systems of other countries show it to be fit for purpose and effective.



What were the issues with the ‘old’ law?


The current law on divorce is based on the Matrimonial Causes Act 1973. There are five criteria for a divorce that place blame on one of the parties to allow for the divorce to be granted.[iv] The first three are adultery, unreasonable behaviour, and desertion.[v] The petitioner must prove that the respondent committed a fault under one of these criteria and, as a result, they cannot ’reasonably be expected to live with the respondent’. If this cannot be proven, then the couple must be separated for a continuous period of two years and then both consent to the divorce or be separated for five years where one refuses to consent.[vi] One of the current policy objectives is to encourage the saving of the marriage, something that is not clearly achieved when the parties present their case by apportioning blame upon one another.[vii]


The issues with the current law were brought to light in the Owens case, in 2018.[viii] Mrs Owens petitioned for a divorce based on Mr Owens unreasonable behaviour which was said to have irretrievably broken down the marriage. She also claimed that it was not reasonable for her to be expected to continue living with him. The Court could not find evidence of unreasonable behaviour and, therefore, her petition failed. She was to remain married to Mr Owens until they could satisfy ground (e); separation for five years. This case brought the issues of the old law into focus, as the Court were uneasy with the concept of forcing someone to remain married when they were clearly unhappy. However, in the Supreme Court, Lady Hale reasoned that it is not their place to change the law that the Parliament has passed as their role is simply to interpret and apply it.[ix]


Earlier, in 1990, the Law Commission set out six issues with the current law on divorce.[x] They deemed the current practice confusing, discriminating and unjust and claimed it provokes unnecessary hostility, distorts the parties’ bargaining powers, makes things worse for the children, and does nothing to help save the marriage.[xi] The fault aspect of divorce means that one of the parties must ’take blame’ for the breakdown of their marriage, increasing animosity and hostility between the parties. Amicable decisions are unachievable as a joint petition is not a valid form of divorce under the current law. This has huge implications where the parties have children or shared property, as they may be unable to maintain civil communication.


The Nuffield Foundation report ’Finding Fault? Divorce Law in Practice in England and Wales’ included interviewing parties to discuss their satisfaction with the current process. They found that 62% of petitioners and 78% of respondents believed that their relationship suffered additional bitterness and conflict due to the fault element.[xii] This shows that the current law on divorce is ineffective in saving marriages or creating amicable living situations for children from these marriages.



How will the law change?


The Divorce, Dissolution and Separation Act 2020 removes the need for a fault element in the claim, expecting parties to provide a statement of irretrievable breakdown.[xiii] The intention behind this is to allow for amicable resolution and joint petition, thus enabling the parties to apply for a divorce cooperatively and not as opponents. There will be a minimum period of 20 weeks from the start of the process. This gives the parties time to agree on any other practical alternatives before the divorce occurs.[xiv]


The no-fault system aims to reduce conflict and prevent damaging the future relations of the parties. If the parties do not have to allocate fault or blame upon one another, they are more likely to communicate effectively. This will enable them to facilitate good future relations. Therefore, the focus can be placed on the custody of children or the separation of property, rather than on blaming each other for the breakdown. The legal instrument acknowledges that not every marriage breaks down due to someone’s error as it may simply breakdown as parties grow apart or change as people.[xv] Parties can agree upon this and settle their issues calmly and without anger or resentment.


Clearly, conflict will be minimised as the parties can end their marriage purely by choice. This eliminates the risk of an applicant falsely accusing the respondent of behaviours or offences which would show that they behaved in an unreasonable manner.[xvi] The applicant no longer benefits by lying to their solicitor or the court about this. This also eliminates the risk of claims for defamation of character from arising during the divorce process, thereby reducing the expenses and stress of the parties.[xvii] Therefore, removing the fault element of divorce will be more effective and efficient.


The benefits of reducing conflict in family law cases are continuous. Mediation is a compulsory aspect of family court proceedings and must be attempted before resorting to litigation. However, because of the English legal system’s fault element, it lacks effectiveness as the parties generally hold too much hostility toward each other due to the argument of who is at ‘fault’ in their relationship. Compromising parties are likely to reap the benefits of no-fault divorce. This will increase the effectiveness of dispute resolution as the parties can avoid litigation and feel confident in their own abilities to compromise on solutions for childcare or the separation of the property.


Another key advantage of the no-fault divorce is that respondents cannot refuse their consent to divorce and force the petitioner to remain married to them. The Owens case deemed this absurd.[xviii] Allowing the respondent to do this simply exacerbates situations of domestic abuse and causes potential victims to be trapped in damaging situations.[xix] The new law, also, removes the five-year separation period as many applicants are unhappy with these criteria, especially, where the opposition is trapping them into a hostile situation out of spite.


The length and costs of the divorce proceedings are likely to also be impacted, as a result. The procedure will take a minimum of 6 months from start to finish as this allows the parties time to reconcile. This may not necessarily be viewed as a positive aspect by the parties, but it will ensure that they have time to take all practical steps to resolve any issues, such as separating property. However, it is still much quicker than the old law, if we consider the fact that the old law requires the parties to wait a minimum of two to five years after separating to pursue a blameless divorce. Similarly, there is no option to contest a divorce under the new law which prevents delays in the system and costs from mounting up. The statement from the applicant alone, stating that the marriage has broken down irretrievably is sufficient evidence for the court. Therefore, to add to the main benefit of reducing conflict, the no-fault system is much cheaper and likely faster than the fault system.


Concluding thoughts


No doubt, no-fault divorce has endless benefits for the parties in comparison to the current system. A no-fault system is a modern view of family law, considering that often marriages simply do not work out or have run their course. The new system will likely reduce hostility, prevent conflict, reduce costs and delays, and increase the effectiveness of mediation. Both Sweden and Australia have shown that a no-fault system is fit for purpose and can please the public, though, both countries suffered opposition similar to that in the UK.




Endnotes

[i] Divorce, Dissolution and Separation Act 2020. [ii] Watts McCray Lawyers, 'Understanding Australia’s No-Fault Divorce' (2017) <> accessed 9th Jan 2022. [iii] The Law Office of Jeremy D, Morley, 'Sweden Divorce Requirements' (International Divorce, 2021) accessed 10th October 2021. [iv] Matrimonial Causes Act 1973, S1(2). [v] Matrimonial Causes Act 1973, S1(2)(a)-S1(2)(c). [vi] Matrimonial Causes Act 1973, S1(2)(d)-S1(2)(e). [vii] Matrimonial Causes Act 1973, S6(2). [viii] Owens v Owens [2018] UKSC 41. [ix] Jan Miller, 'Owens v Owens: No-Fault Divorce Back in Court' (2017) 167 NLJ 7758, 4; Lexis Nexis, 'Analysis: Owens v Owens- the difficulty in divorce' (Family Law, Lexis Nexis, 2019) accessed 9th Jan 2022. [x] The Law Commission, “Family Law: The Ground for Divorce” (1990) HC 636. [xi] Ibid. [xii] Liz Trinder and others, 'Finding Fault? Divorce Law in Practice in England and Wales (Full Report)' (Nuffield Foundation, 2019) accessed 9th Jan 2022, pg 15. [xiii] 'The Law Society, No-Fault Divorce' (The Law Society: Family and Children, 2020) accessed 9th Jan 2022. [xiv] Gov.uk, 'Divorce ‘Blame Game’ to End' (Gov.uk, 2020) accessed 9th Jan 2022. [xv] Acclaimed Family Law, 'No-Fault Divorce in the UK' (Acclaimed Family Law, 2020) accessed 9th Jan 2022. [xvi] Trinder and others (n xii) 18. [xvii] Ibid. [xviii] Jan Miller, “Owens v Owens: No-Fault Divorce Back in Court” (2017) 167 NLJ 7758, 4. [xix] Gov.uk (n xiv).

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