No Fault Divorce: ending the battle of the blame

Revolutionary changes are occurring in UK divorce law, with the current provisions under review after controversial court cases and public challenges. Evidently, this will be an ongoing debate, with evolving societal attitudes and ideas having a proven impact on our legal framework. Therefore, it is crucial to understand what rules are in place at the moment, when they have been contested, and what suggestions have been made for their amendment.

The law – creating controversy

The Matrimonial Clauses Act 1971 sets out the criteria that must be met before a single marital party (the ‘petitioner’) can petition for a divorce against their partner (the ‘respondent’). Section 1 of the Act mandates that a marriage must have broken down ‘irretrievably’ before petitions can be considered by the court. Such an irrevocable state can only be met if:

• The respondent has committed adultery and the petitioner finds it ‘intolerable’ to live with them
• The respondent has behaved poorly and it would be unreasonable to expect the petitioner to live with them
• For two years prior to the petition, the respondent has deserted the petitioner
• The parties have lived apart for two years preceding the edition and the respondent consents to the divorce
• The parties have continuously lived apart for a period of five years before the petition

Following the above, a court will inquire into the validity of the facts presented by both parties, and unless the judges believe a marriage has not broken down, it will grant a divorce. This is granted as a ‘decree nisi’ (the divorce will take place unless there is a good reason it should not) until after a six month period, then the divorce becomes final.

The case – igniting challenge

In 2018, the UK Supreme Court made a landmark ruling, taking the first step in the direction of change. This case was Owens v Owens.

• The facts: the Owens’ had been married since 1978, with two children who had now reached adulthood. Mrs Owens had considered a divorce in 2012, but did not petition until 2015. The couple then began to live separately and Mrs Owens’ initial claims that her husband behaved poorly during their marriage (see point 2 above) succeeded. However, as they proceeded through the courts, the Judges found Mrs Owens’ allegations against her husband to be ‘flimsy’ and allowed Mr Owens to contest her petition. After seeing her case dismissed, she appealed to the Supreme Court.
• The outcome: the Justices unanimously dismissed the appeal, and thus Mrs Owens had to remain married to her husband.
• The significance: the outcome of this decision evidences how the law is not in keeping with modern society – forcing spouses to remain trapped in a marriage when fifty per cent of the contracting partners are unhappy. This calls into question the quality of life that both Mrs Owens and those in a similar position would experience, and as the Justices of the Supreme Court have no grounds to strike down UK statutes, a review and possible reform fell into the hands of Parliament.

The Bill – causing change

Abundant media coverage, pubic comment and political debate followed the Owens case decision, mounting to the proposal of a Bill (a law that has not yet passed through Parliament) to remedy the issues in divorce law. The bill was sponsored by then Conservative Lord Chancellor David Gauke in July 2019, and is currently due to go through the Report Stage of the parliamentary process – where scrutiny committees report on their findings having analysed the proposal.

The Bill, entitled the ‘Divorce, Dissolution and Separation Bill’ contains the following adjustments to UK divorce law:

• New requirements to prove that a marriage has broken down irrevocably, removing the need to prove allegations of poor behaviour or separation facts
• Respondents will be prevented from opposing a divorce if it has been evidenced as irrevocably broken down
• Allow for joint applications for divorce by both spouses
• Alter the structure and rules with regards to the timings of divorce procedures
• Include updated terminology to improve public understanding of the law

Whilst there is widespread support for the Bill, some argue that changing the law could damage the respect and importance associated with a marital bond. Furthermore, there are claims that divorce rates would increase. However, it is evident that such rates are already relatively high, and the benefit of removing the need to prove fault will enable discontented spouses to find a release. Preventing the respondent from contesting a petition also suggests that divorces will be more accessible for those who are suffering domestic abuse.

The date for the Bill’s next stage in the parliamentary legislative process is still to be confirmed, thus TSL will be keeping track of the unprecedented divorce law transformation.

Article by Eliza Liddicott