The end of the blame game - introduction of no fault divorce

The Supreme Court Judges, who in 2018 infamously rejected Tini Owens' divorce petition, each made clear in their judgments that they were “reluctant”, “uneasy” and “troubled” by their decision. They explicitly passed the baton of divorce reform to Parliament and nearly 2 years later, the Divorce, Dissolution and Separation Act 2020 was passed. This Act finally paves the way for “no fault divorce”, something practitioners have campaigned for for years.  The operative provisions of the Act are not yet in force, but it is anticipated that the new law will come into effect by Autumn 2021. Sadly this is too late for Tini Owens herself - in 2020 she finally became entitled to divorce her husband, having been separated for a period of 5 years.

Until this latest Act, divorce in England and Wales has always required either an allegation of “fault” or a long period of separation. Prior to 1857 a private Act of Parliament was needed to obtain a divorce. Husbands could divorce if they could show their wives had been adulterous; wives had to prove adultery and life-threatening cruelty. There were about 2 such private Acts of Parliament a year, mostly by husbands, and they were very expensive.

In 1857 the Matrimonial Causes Act introduced more widespread secular divorce. Proof of adultery was still required, together with cruelty (e.g. incest or bigamy) or desertion if you were a petitioning wife. Tweaks to divorce law followed during the 20th century, but it was not until the 1969 Divorce Reform Act, subsequently adopted in the Matrimonial Causes Act 1973, that any non-fault divorce was permitted. It has been and remains the basis of divorce law to date.  It permits divorce on only one ground: the irretrievable breakdown of the marriage.  That a marriage has broken down is evidenced by proving one of 5 possible facts, namely that:

• the other spouse has committed adultery;
• the other spouse has behaved unreasonably such that the petitioner cannot reasonably be expected to live with them;
• there has been a period of at least 2 years’ separation and the other spouse consents to a divorce;
• there has been a period of at least 2 years’ desertion; or
• there has been a period of at least 5 years’ separation (if the other spouse does not consent to divorce).

As can be seen, the first two of these facts are still fault based and the latter three require a long period of separation. 

In 1996 the Family Law Act was the first domestic Act to contemplate no fault divorce, but the relevant part of that Act was never implemented and was subsequently repealed. The new 2020 Act (which applies equally to divorce, dissolution of civil partnership and judicial separation) still retains the requirement that there has been an irretrievable breakdown of the marriage but it abolishes the need to show one of the 5 facts referred to above; a statement of irretrievable breakdown will suffice. 

There will be no opportunity to defend the divorce (although of course challenges will still be possible on the basis of jurisdiction, validity of the marriage, fraud, coercion and procedural compliance, for example) and it will be possible for parties to make a joint application.  The language is changing too in favour of “plain English” with “Decree Nisi” becoming a “Conditional Order” and “Decree Absolute” a “Final Order”. A Conditional Order will not be possible before a 20 week period of reflection has elapsed from the date of filing the proceedings and, as now, a further 6 week period is required before a Final Order can be obtained. Divorce will still not be possible within the first year of marriage.

This reform is long overdue and warmly welcomed. Once in force, not only will it save costs, but it should also be a very great help to parties and their children in bringing about a dignified end to marriage and preserving an amicable relationship between parents as they transition to separated parenting. There will be no more need to play the blame game.