Introduction

‘Divorce is the psychological equivalent of a triple coronary bypass.’ – Mary Kay Blakely.

The court case that changed the face of divorce in England and Wales

Tini Owens had an affair between November 2012 and August 2013.   After this was discovered, she wanted out of her loveless marriage of 40-years and said her retired husband (a mushroom farmer) regularly ridiculed her to others. Hugh Owens disagreed and did not want a divorce. He told the court they still had a ‘few years’ to enjoy.

Under the ‘Matrimonial Causes Act 1973, ‘ couples could divorce with evidence of fault (unreasonable behaviour, adultery, or desertion). If both sides agree, they could part after two years of living apart.   However, in the absence of these two factors, applicants could only divorce after a five year-separation.

Tini Owens lost a Supreme Court fight in 2018 when she could not convince the judges that her marriage should end. The judges ruled that being unhappy and ‘trapped’ in a marriage is not sufficient grounds for divorce.   The Supreme Court said she had to stay married to Hugh until 2020 when the ‘five-year separation’ period ended.

It was this case that finally set the gears in motion for change and resulted in the ‘no-fault divorce’ law.   The bill was passed in June 2020 and officially became law in April 2022. 

‘Fault-based’ divorce that created heartache instead of understanding is no longer.  The ‘no-fault’ divorce law acknowledges the reality that marriage can break down quietly.  Now couples can divorce without having to blame each other. Divorce can also no longer be contested.

Exactly how did it work under the previous divorce system?

Blame, blame

Under the previous rules in England and Wales, anyone who wanted a quick divorce had to allege that their partner committed adultery, essentially left the family home for good, or behaved unreasonably.  This led to stress, conflict, and even financial loss.  Shifting the blame was an explicit requirement.

If none of the ‘reasons’ for divorce could be proven, the couple had to face two or five years of living apart before they could divorce, depending on if one of the parties contested the divorce.

How things changed

The Divorce, Dissolution and Separation Act of 2020 ends the ‘blame game’ and applies to marriages that have once and for all broken down as well as the ending of civil partnerships.  

The focus has shifted to amicable divorces, and a couple can now mutually name ‘irretrievable breakdown’ as the lone ground for wanting a divorce.   The unnecessary finger-pointing and mudslinging are removed from the process.

Here’s how it works:

• Both spouses can provide a statement saying that their marriage had broken down.  No evidence of bad behaviour is needed. Couples can also opt to make this a joint statement.
• The decision to divorce cannot be disputed, except on limited technical grounds, as the statement is now the ‘conclusive evidence.’
• A new minimum period of 20 weeks from the start of the proceedings to a conditional divorce order allows couples to reflect on their decision to divorce and make practical arrangements.
• After a further six weeks have elapsed, the applicant can apply for a final divorce order unless they are still sorting out the financial matters.
• One party can make the divorce application online, and the respondent need not defend or cross-apply for anything.

The Divorce, Dissolution and Separation Act of 2020 simplified the language of divorce, making it more understandable for the layman. For instance, the terms ‘decree nisi’ and ‘decree absolute’ were replaced with ‘conditional order’ and ‘final order.’

(After the implementation of the Act, the UK government has also committed to looking into the law around financial settlements after divorce. The new law does not affect the financial settlement process and would not necessarily speed up the divorce process.)

Why the change from no-fault divorce?

In the 70s, people’s attitudes to marriage and divorce differed. In the meantime, society has changed and today, anything goes.  

Today, it is unfair to ‘force’ a couple to stay together in an unsuccessful or loveless marriage. The new act overhauls the old system where spouses often had to resort to private detectives to find evidence of ‘fault’ (or even fabricate the evidence) just to get out of a marriage.   

The new law also stops one partner from maliciously contesting a divorce, as Hugh Owens did.  In the past, domestic abusers could challenge a divorce application just to have further strong-arm control over their victim.  The new law makes sure that this won’t happen.

The pros and cons of the new law:

Pros:  

• It is now possible to simply say ‘the marriage failed’ without someone being accountable. This could ease some of the stress and pain that couples suffer when they separate.
• The new process makes it easier for couples to settle the terms of their divorce instead of spending their time caught up in longwinded and bitter legal battles to prove ‘fault.’  The toxic elements are drained by no-fault divorce and bring divorce in line with current styles in relationships.
• Under the old system, the relationship between the divorcing parties could deteriorate further as evidence of faults is dredged up.   Now the relationship is saved from further harm.

Cons: 

• Making the divorce process ‘easier’ could damage the sacredness of marriage.  Marriage is cheapened as people now think they can just divorce if the relationship does not work out.
• More straightforward divorces can lead to people not even trying to save a marriage.  
• A spouse who commits adultery or behaves irrationally is not being held accountable under the new law.  

What has been the reaction after the no-fault divorce law came to pass?

In the first week of the new law, 3 000 applications for separations were lodged. Typically, the figure would have sat at 2,100 applications per week in 2021. However, experts say the initial flurry will slow down and pan out over time.   

Conclusion

The family law group, Resolution, campaigned for more than 30 years to get these reforms to pass.  As a result, the Divorce, Dissolution and Separation Act of 2020 will lead to a kinder, less antagonistic divorce process in England and Wales.

There are huge hopes for the new divorce law, but there are still some hiccups in the system.  

For instance, there is no clear guidance for courts about what they should do when an applicant seeks an extension of the stipulated time frames.  The UK Law Society also states that the current court fee of £593 is too high and discriminates against the poor.

Through the years, the family law profession has shown that it can adapt a law for the best interests of the parties going through a family breakdown. Therefore, we are optimistic that the legal profession will take the good elements of the no-fault divorce law to make it a workable solution for everyone going through a divorce.

At Robertsons Family Law, we endeavour to resolve divorce and separation proceedings peacefully, positively and a non-confrontational way.  We discuss Separation Agreements as a possible alternative as well as how to proceed with the divorce process.

Should you need advice on any divorce-related matters and finances (or how to navigate the complexities of a breakdown in relationship if you are cohabiting), please get in touch with us to discuss your circumstances and how we can help.