No Fault Divorce Finally Coming to England and Wales
Jackie Jessiman, Senior Associate, Family Law
Divorce laws are set to get their first overhaul in over 50 years. A Bill has recently made it through the House of Commons that will introduce no fault divorce for the first time in England and Wales, bringing about a change that aims to decrease conflict at this stressful and difficult time.
Currently, a person seeking a divorce is required to prove that unreasonable behaviour, adultery or desertion has occurred. This need for a ‘guilty’ party can sometimes lead to conflict where there was none and increased animosity between the divorcing spouses.
Many family lawyers believe that this requirement of assigning blame during divorce proceedings is counterproductive, Resolution, a body of family lawyers, have run a years-long campaign for a no fault divorce that will allow couples to decide that their marriage has come to an end without the need to assign fault to one of the parties.
The recent case of Owens v Owens bought increased attention to this matter and was followed with interest by lawyers, judges and ministers alike as it made its way through the appeal courts to the Supreme Court. The Petitioner, Tini Owens, urged the Supreme Court “please release me” arguing that she should not be expected to remain with her husband of 38 years. The couple have been separated for three years and there is no prospect that they will ever live together again.
It is currently possible for someone to petition for divorce without assigning blame, but this is only possible after two years (with the consent of their spouse) or five years (if their spouse does not agree). As Owens did not consent to the divorce, Mrs Owens had to petition on the grounds of unreasonable behaviour, a claim which Mr Owens defended, which led to court hearings to prove the particulars of the unreasonable behaviour.
In the Owens case, at least 100 examples of Mr Owens’ behaviour were pleaded, yet the Court still refused to allow the divorce, finding Mrs Owen’s examples not unreasonable enough for a divorce to be granted. For this reason, many divorce petitioners tend to ‘beef up’ their examples of unreasonable behaviour in order to ensure the divorce goes through the court. This flies in the face of family law protocol, which seeks to minimise conflict by agreement wherever possible at every stage of the divorce process.
Some argue that the two years separation with consent or five years separation without consent does give couples a no fault divorce. In practice, however, these grounds are rarely used because of the time requirements that they impose. Tini Owens first petitioned for divorce in 2015 and being required to wait for 5 years before she can finally move on with her life seems to be an unfair condition to impose on a person who just wishes to end their marriage.
However, in part due to the Owens case, things are due to change. As of 25 June 2020, Royal Assent has been given to the Divorce, Dissolution and Separation Bill and this will overhaul the divorce process when it is introduced into law in Autumn 2021. Major changes that will be coming include:
Irretrievable breakdown of a marriage will now be the sole ground for divorce and there will be no facts of behaviour or period of separation needed to prove that the marriage has irretrievably broken down.
The new laws will introduce a minimum timeframe of 6 months from petition stage to final divorce. It will take 20 weeks to get from the petition stage to decree nisi and a further 6 weeks from the decree nisi before a decree absolute is granted. This does mean that divorces will take on average 6 weeks longer than they currently do.
For the first time, divorcing spouses will be able to jointly apply for a divorce. This will not be a requirement, the option for one person to initiate divorce proceedings will be retained and it will also no longer be possible to contest a divorce.
Had these laws been in place when Tini Owens first petitioned for divorce, her husband would not have been able to prevent the divorce from taking place and she would not have gone through the arduous process of defended divorce. The lawyer who represented Mrs Owens during her case said.
“This announcement is welcomed by Tini Owens, in particular. She hopes that no-one else will have to go through the long and painful process she has had to endure, as required by the current law. She looks forward to new divorce law which is fit for the 21st century.”