Courts are not couples’ therapists - and that’s a good thing
Northern Ireland has launched a public consultation on whether it too should introduce no-fault divorce. As the only remaining UK jurisdiction to still rely entirely on fault-based provisions (such as adultery or unreasonable behaviour), the move signals a recognition that societal expectations and legal best practice have shifted. If implemented, the reform would bring the UK into closer alignment and offer families across all regions a more dignified path to separation.
As family lawyers, we have seen first-hand how no-fault divorce in England and Wales has allowed couples to focus on the logistics of separation - children, finances, and future planning - rather than the emotionally charged but fruitless process of assigning blame. However, from a practical perspective, the transition to no fault has not always been understood by clients.
No-fault divorce in England
When England and Wales introduced no-fault divorce in April 2022 under the Divorce, Dissolution and Separation Act 2020, it marked a quiet but profound revolution in family law. The reform came after decades of campaigning from legal practitioners and judges alike, who recognised that a system requiring one party to blame the other for the breakdown of the marriage was no longer fit for purpose.
One of the most high-profile examples that catalysed public and political support for reform was the Supreme Court case of Owens v Owens [2018] UKSC 41. In that case, Tini Owens was denied a divorce despite alleging her husband had behaved in such a way that she could not reasonably be expected to live with him. The Court, applying the law as it then stood, reluctantly held that her husband’s behaviour did not meet the threshold for “unreasonable behaviour” (on the basis of the examples of the husband’s behaviour, relied on by the wife, and the husband’s response to those allegations). Lady Hale herself expressed concern that the law was forcing people to remain legally bound in unhappy marriages.
In the aftermath of Owens, Parliament acted. The 2022 law now allows one or both parties to simply state that the marriage has irretrievably broken down, without providing evidence of fault or wrongdoing. Since 2022, getting divorced in England now involves completing an online application on either a sole or joint basis and does not usually involve a single court hearing. This sea change has made the process swift and straightforward (often completed in between 6-8 months).
The End of Blame
However, many clients still hope that the court will validate their experiences or admonish their spouse for perceived wrongdoing during the marriage. Under the current law, the court does not assign moral blame and, unless conduct is truly egregious, such as litigation misconduct or deliberate financial non-disclosure, it rarely affects the outcome of proceedings. The vast majority of cases proceed without reference to personal failings. This is by design.
Why the Court Doesn’t Blame
Divorce is a deeply personal and emotional experience. The courts do not consider determinations of “who was the better spouse” as within their remit. Such questions, albeit arguably emotionally vindicating, do not propel a legal matter forward. Rather than dissecting the past, the system is designed to facilitate fair and efficient exits. Judicial resources (and taxpayer money) are better spent resolving concrete issues like housing, child arrangements, or pensions, than trying to sort through emotional grievances.
What’s more, any blame-based system often leads to protracted litigation and spiralling legal costs. Parties become entrenched in combative narratives, exchanging long statements about who did more with the children, who flirted at dinner parties, or who spent too much time at work. This not only increases hostility, but (where legal fees are incurred) significantly reduces the funds left for division, leaving less for both parties and their children to move forward.
India’s Fault-Based Reality
The advantages of the no fault divorce process in England have not gone unnoticed - particularly among clients involved in international relationships or those with dual connections to jurisdictions like India. We increasingly advise on international divorces involving England and India and a clear trend stands out: a fault-based regime means longer timelines, higher costs and rising acrimony.
The contrast with India’s fault-based system is stark. Despite recent progressive judgments, Indian family law remains largely grounded in traditional fault-based provisions under the Hindu Marriage Act 1955 and other personal laws. Allegations of cruelty, adultery, and desertion are still the so-called grounds relied upon.
The recent judgment in Shilpa Sailesh v Varun Sreenivasan (2023) 14 SCC 231 saw the Supreme Court of India observe that it can grant divorce on the ground of “irretrievable breakdown” in the interest of justice even if one party opposes it. Yet today, irretrievable breakdown is not codified and remains available only through the Supreme Court’s discretionary powers under Article 142 of the Constitution of India. Crucially, only the Supreme Court may pass orders under Article 142, and such orders do not constitute binding precedent. This is why parties continue to be compelled to pursue fault-based divorce in Family Courts and High Courts.
As a result, Indian divorce petitions often become long-winded, adversarial documents, littered with accusations. This procedural posturing not only delays resolution, but heightens emotional distress, particularly in cases involving children. There is growing recognition within the Indian judiciary and Bar that this is not the way to promote amicable separation.
Divorce as Transition, Not Failure
One of the most constructive ways to support clients is to help them reframe divorce - not as a failure, but as a transition. Many marriages are meaningful for a time, and their end does not negate their success during that time. Relationships can evolve, reach a natural conclusion, and still be respected for what they once were.
No-fault divorce allows for this perspective. It creates space for parties to separate without hostility and focus on rebuilding their lives, especially where children are involved. It’s a narrative shift, from one of winners and losers, to one of closure and growth.
Looking Ahead
Five years on, in stark contradiction to the concerns about no-fault divorce opening the divorce floodgates, ONS reported a c 30% decrease in divorces in England in 2022 in comparison to the previous year. What has changed, is the tone of divorce. By removing the requirement to blame, we have allowed couples to start their separation bearing in mind what truly matters – financial empowerment, their children and mental wellbeing.
As Northern Ireland considers following suit, and as jurisdictions like India observe the benefits of this model, the direction of travel is clear. Divorce laws that prioritise resolution over retribution ultimately serve families better - by preserving resources, protecting children, and facilitating new beginnings.
As family lawyers, the job is not to inflame the conflict but to shepherd our clients through change. No-fault divorce is not an attack on the institution of marriage; it is a route that respects both the complexity of human relationships and the need for finality.
