No fault divorce: how the new law will reduce family conflict

After more than 50 years, the law governing divorce –- the process of legally dissolving a marriage -– is changing in England and Wales. While everyone hopes they won’t have to use divorce law, each year over 100,000 couples do. Yet for half a century the law itself has actually increased conflict between the parties and negatively affected children. The new law is intended to reduce family conflict and enable couples to dissolve their marriages or civil partnerships without the law itself making things worse.

The old law was based on the Divorce Reform Act 1969, which was later incorporated into the Matrimonial Causes Act 1973. The 1973 act stated that a petitioner (the spouse seeking a divorce) could only get a divorce when their marriage had irretrievably broken down and they could prove one of five circumstances (“facts”) existed. Three facts were fault-based: adultery, behaviour and desertion for two years. The other facts required two years’ separation if the other spouse consented to the divorce or being separated for five years.

Unless couples were willing to wait two years, the only options were to divorce for adultery or behaviour, which led to some petitioners feeling compelled to exaggerate or distort their accounts of events during the marriage in order to get a divorce. Research by the Nuffield Foundation in 2017 found that only 29% of respondents said that their “fault” reason very closely matched the reason for the divorce. This tells us that most fault-based divorce petitions (the official document requesting a divorce) were not an accurate account of a couple’s experience. About two-thirds of couples who divorced using fault grounds said it made the process more bitter, and around one-fifth said the law made it more difficult to sort out arrangements for their children.

A 1990 report from the law commission found that the law provoked unnecessary hostility and bitterness. The commission found the process made things worse for children because it set the tone for their parents to remain in conflict following divorce.

Further calls for reform came from the supreme court in the high-profile case of Owens v Owens in 2018, which revealed the absurdity and unfairness of the law when Mrs Owens was unable to obtain a divorce. The first judge decided that the 40-year marriage had broken down, but Mrs Owens had failed to show her husband’s behaviour towards her satisfied the legal requirements for a divorce. Despite finding it a “very troubling case”, the court of appeal and supreme court could not overturn that decision because the first judge had applied the law correctly.

A few months later, the government published its proposals to reform the law. The government accepted the many criticisms of the law and moved quickly to introduce a bill that became the Divorce, Dissolution and Separation Act 2020 now coming into effect.

The new law

The new law amends the Matrimonial Causes Act 1973 (relating to marriage and divorce) and the Civil Partnership Act 2004 (relating to civil partnership and dissolution). Irretrievable breakdown remains the sole ground for divorce, but the need to prove any of the five facts has been removed. Couples will no longer have to document past wrongs to end their marriage.

A divorce can be sought by one party –- as before –- or now by both parties jointly based on a statement of irretrievable breakdown. Joint applications will better reflect that divorce is often a mutual decision and encourage cooperation early in the process.

The court must take the statement to be conclusive evidence that the marriage has broken down irretrievably and grant the divorce. It will generally not be possible to contest a divorce application by challenging such a statement.

The divorce process will now take a minimum of 26 weeks to complete, which will be considerably quicker than in some cases under the old system. The government hopes couples will use this period to plan for the future or, in some cases, to provide “a meaningful period of reflection and the chance to reconsider” whether to end the marriage. Civil partnership dissolution will operate in the same way.

The future of divorce

Despite the new divorce process being cheaper to administer and moving online, the Ministry of Justice has no plans to reduce the £593 application fee.

However, by avoiding one party blaming another, the new system might still save couples money in the long run. A more conciliatory, civil approach should make it easier for couples to resolve matters of finances, property and children.

The new law is likely to lead to a short-term surge in divorces, as happened after the last reform in the early 1970s. However, once this increase subsides, the overall number of divorces will probably be much as they would have been without the reforms.

In recent decades, efforts to develop a more constructive and child-focused system of family justice have been compromised by English divorce law itself. The new law will be an improvement and finally bring the law in line with how people live and love in the 21st century.

Andrew Gilbert, Senior Lecturer in Law, The Open University

This article is republished from The Conversation under a Creative Commons license. Read the original article.