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The History of No Fault Divorce

From Autumn 2021, no-fault divorce will come into force in the UK – the first major reform to divorce law since the 1970s. The new process will put an end to what critics call the ‘blame game’ the current law forces couples to play.

No-fault divorce is expected to improve the process for the vast majority of separating couples; it will remove the need to place the entire responsibility for the breakdown of the marriage onto one party and prevent people from becoming trapped in loveless marriages if they cannot ‘prove’ that the relationship has irretrievably broken down. Overall, the new no-fault divorce process is expected to be a more realistic reflection of how relationships come to an end.

So, if the current divorce process is so unfit for purpose, why has it taken so long to change the law? No-fault divorce has a long history in the UK and the arguments for and against it have been closely linked with the perceived role of marriage in our society.

A brief history of divorce law

Long gone are the days when the church was the only institution that could grant a couple a divorce (although even Henry VIII had his issues getting a divorce in this way). Marriage was historically viewed as a sacred, life-long union that could not be broken by either party.

Over the centuries, divorce shifted from a matter for the church to a matter for the courts. From the very beginning, justification to divorce was based on fault. The current law traces its roots back to the 1850s when men were finally given the right to petition the court if their wife committed adultery. In the 1920s, women were also given the same right. In 1937, further reforms introduced more ‘matrimonial offences’, including ‘cruelty’ and ‘incurable insanity’.

However, two world wars instigated major social changes in the UK. Women in particular were taking a bigger role within the home and in the public sphere and by the 1950s it was clear that divorce law was not fit for purpose.

The current law on divorce – the Matrimonial Causes Act 1973

Although many do not view marriage as a religious union anymore, some argue that it is still an essential ‘status’. As well as legal benefits and obligations, it also bestows a moral duty on the partners to support each other and any children. If there are issues within the marriage, it is for the couple to put in the work rather than simply walking away. For reasons such as this, modern divorce law was developed on the principle that the role of marriage would be undermined if one partner could choose to unilaterally end it – they must have a good reason to do so.

The current law on divorce was introduced in the late 1960s in the Divorce Reform Act (which was consolidated into the Matrimonial Causes Act 1973).

Under the Act there is one ground for divorce – the irretrievable breakdown of the relationship. The court will only allow the divorce if the person making the petition relies on one or more of five ‘facts’. The concept of ‘matrimonial offences’ introduced in the 1930s was removed, but three of the facts are still fault-based:

  • Adultery
  • Unreasonable behaviour (formally cruelty)
  • Desertion

Despite policy views on the role of marriage in society, the law ultimately compromised in the face of social change by also introducing the ‘separation’ facts. An individual can petition for divorce if they have lived independent lives for:

  • Two years if the parties both consent to the divorce
  • Five years if one party will not consent

The situation for civil partnership dissolution (introduced in 2003) is broadly the same except civil partners cannot rely on the fact of adultery.

If the couple cannot satisfy at least one of the five facts, the court is not able to grant the divorce, even if the relationship has irretrievably broken down.

The problems with the current law

In reality, if the both parties agree to the divorce, the courts do not tend to investigate a couple’s reasons. Therefore, for most couples, fault-based divorce is a figurative problem rather than a legal one.

However, for many couples, the current divorce law does not reflect the true reality of their relationship. Although some relationships do end with a bang due to an event such as adultery, many others end simply because the parties have drifted apart or decided they want different things in life.

Divorce law has long been criticised for forcing couples to air their grievances in public and point fingers when evidence shows that the divorce process is more straightforward and less stressful (particularly for children) if the focus is on cooperation rather than assigning blame. Critics argue that fault-based divorce only serves to stir up conflict between couples which can lead to lengthy, expensive and avoidable court litigation.

Supporters of the current divorce law often point to the separation facts as evidence that not all divorces have to be based on fault. However, statistics show that around two thirds of divorces are based on the fault facts. A 2017 report by the Nuffield Foundation revealed that only 65% of petitioners who relied on the fault facts believed that their actual reasons for the divorce matched the facts relied upon. Very tellingly, only 29% of respondents – the person being assigned the blame – believed the true reasons matched the facts.

Understandably, people do not want to put their lives on hold until they become eligible to rely on the separation facts. The lesser of two evils is to place the blame knowing that the court won’t investigate their reasons if they both agree to the divorce.

Marriage prisoners – Owens v Owens

The rarer but more extreme effect of fault-based divorce law is that if a respondent does not agree with the ‘facts’ put forward by the petitioner, they can defend the petition. The best case scenario here is that the divorce is finally granted after a lengthy and stressful court battle. The worst case scenario is that the divorce is refused, trapping the petitioner in an unhappy and loveless marriage until they have been separated for 5 years.

This issue hit main-stream headlines in 2018 with the case of Owens v Owens. Tini Owens petitioned to court to divorce her husband of  40 years. However, he protested and the judge took his side stating that the Tini Owen’s reasons were ‘flimsy’ and ‘exaggerated’ at best. Although she appealed, under the existing law, the Supreme Court had no choice but to reject her case. Tini Owens was therefore forced to stay married against her will until 2020 when she could apply to divorce on the ground of separation after 5 years.

The Supreme Court judges were vocal in their disapproval of Tini Owen’s plight with then-Supreme Court president, Baroness Hale, stating it was “a very troubling case”.

After the Court handed down its judgment, the Ministry of Justice stated, “the current system of divorce creates unnecessary antagonism in an already difficult situation”. Critics continued to question why the UK was lagging far behind other countries that already had a system of no-fault divorce, such as the US and Australia.

Attempts to introduce no-fault divorce

Given the issues with fault-based divorce, there have been several attempts over the years to introduce no-fault divorce, the first major attempt pre-dating Owens v Owens by over 20 years.

No-fault divorce was originally introduced in the Family Law Act 1996. However, Government pilot programmes – which involved the divorcing couple attending a ‘compulsory information meeting’ before being allowed to divorce – were apparently ‘unworkable and flawed’. Therefore, the law was repealed and abandoned in 2001.

In July 2018, Baroness Butler-Sloss introduced a Lords Private Member’s Bill to require the reconsideration of the law on divorce, civil partnership dissolution and judicial separation. In the wake of the Owens v Owens case, which was also decided in July 2018, supporters of the Bill stated that, “surely, the recent case of Owens v Owens has shown clearly that our divorce law is not working”. However, the Bill did not make any progress. Other attempts over the years were similarly unsuccessful.

No-fault divorce consultation 2018-2019

On 15 September 2018, the Government published a consultation asking for views on abolishing the 5 ‘facts’. The consultation directly referred to the Owens v Owens case and questioned whether the law achieves in practice what it intends in principle.

On 9 April 2019, the Government published the responses to the consultation and on the same day announced its intention to change the law and introduce no-fault divorce.

This announcement was well received. For example, Resolution stated, “we welcome these proposals… With this new legislation, finally our divorce laws will be brought up to date – helping divorcing couples and, most importantly, any children they may have, avoid unnecessary conflict”.

However, not all reactions were positive. Some critics of no-fault divorce lamented the idea that marriage is being reduced to something more like a contractual arrangement that either party can walk away from at any time. For example, the Coalition for Marriage stated that, “marriage is being turned into an agreement with less security than a tenancy agreement”.

No-fault divorce to start in Autumn 2021

No-fault divorce has taken a long time to get through the Parliamentary system and it finally became law in June 2020. However, couples will not be able to get a no-fault divorce until Autumn 2021 at the earliest. The Lord Chancellor’s reason for this is “because time needs to be allowed for careful implementation”.

Further information about no-fault divorce

Do you need more information about what getting a no-fault divorce will entail? Are you thinking about getting a divorce or civil partnership dissolution but don’t know whether it’s worth waiting for the new law?

Visit our no-fault divorce page for more information about the new law, how it will work and whether it is worth waiting for Autumn 2021 before getting a divorce.

Alternatively, give us a call at your local Crisp & Co branch and one of our expert divorce solicitors will be happy to provide you with tailored advice about your individual situation.

 

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