Non-Court Dispute Resolution – tough love from the Bench?
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‘No fault’ divorce and the Divorce, Dissolution and Separation Bill
The Divorce, Dissolution and Separation Bill (“the Bill”), which received Royal Assent in June 2020, and which the Government has now fixed as a matter of Parliamentary record as coming into force on 6 April 2022, will establish a simplified divorce process in England and Wales in the hope of reducing family conflict.
It is expected that removing the element of fault will lead to less hostility and in turn provide a smoother transition for any children: throughout proceedings the welfare of children is the paramount concern for the Court and this Bill has been written with that in mind. The proposed changes will also apply to the dissolution of civil partnerships.
The history
The Matrimonial Causes Act 1973 (“MCA 1973”) (which consolidated the laws from the Divorce Reform Act 1969) has not had an overhaul since 1973, even though society has moved on significantly since then. In particular, the Civil Partnership Act 2004 and The Marriage (Same Sex Couples) Act 2013 brought about monumental changes to the law, offering equality for gay couples in terms of finally recognising their right to marry. It was a massive step forward for an antiquated system and now the divorce law is following suit.
The well-documented case of Owens v Owens1 in 2017 highlighted the issues of our outdated approach to divorce and raised the question of a reform of the law. On appeal at the Supreme Court, the President found that even though the marriage had broken down irretrievably (the test for granting a divorce) the law did not allow the Court to grant the divorce because the petitioner could not provide sufficient evidence of her husband’s alleged ‘unreasonable behaviour’. The President of the Family Division noted that Parliament had dictated that it is not a ground for divorce that you are in a dreadfully unhappy marriage and this was upheld by the judges throughout the appeal process.
The relevant section of the MCA 1973, which sets out the rules for whether a divorce can proceed, should be interpreted in accordance with the changes in our understanding of the world, technology, society and attitudes. To quote the President of the Family Division in Owens, it must be viewed with reference to “not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017”. There is, however, a limit to how much the Court can interpret this and remain within the law set out in the MCA 1973, which is why the judges’ hands were tied in Owens (the general consensus seemed to be that they wanted to grant the divorce but were not permitted by law to do so).
Stephen Cretney, in his book, Family Law in the Twentieth Century: A History, 2003, spoke about how the Family Law Act 1996 attempted to introduce a ‘no-fault’ divorce system, but this was never brought into force because the pilot schemes showed the framework was not yet ready and the provisions of the proposed law were too complex for smooth implementation. He questioned whether in fact it should be up to the parties to decide whether or not their marriage should be dissolved, rather than the Government.
Changes brought about by the new Act
The parties will still need to wait 1 year from the date of the marriage before filing for divorce but the main changes to the law are discussed below.
1. Removal of blame
Currently, in the absence of desertion, of an agreement to divorce after 2 years’ separation have already passed, or of having waited 5 years after separation to divorce without consent, the law requires one party to accept blame for the breakdown of the marriage, either by admitting to adultery or to having behaved in a way that the petitioner could not reasonably be expected to live with, and therefore remain married to, the respondent.
In addition to a protracted divorce process, playing this ‘blame game’ leads to acrimony, even when a couple has sought an amicable split, which can have a knock-on effect for the whole family, causing resentment and heightening negative emotions at an already stressful time. This can be particularly damaging to children if not handled correctly. It is very difficult at times to separate the conflict that couples are experiencing between themselves from the other’s relationship with the children. It can also cause issues for the financial process.
Under the current law, the reasons for divorce must have both an objective and subjective element. It is not enough for petitioners to rely purely on how they feel: they must provide evidence of the types of behaviour that make them feel this way. To begin the divorce process without having to wait can therefore require inventive drafting, with petitioners potentially lying about adultery or embellishing the behaviour of their spouse.
The new changes would mean that the petitioner, or both parties in the case of a joint application (one of the suggested changes), simply needs to cite ‘irretrievable breakdown’ for the grounds of divorce. This will reduce costs as there will be no need to negotiate reasons that are strong enough to be accepted by the Court but mild enough to be agreed by the respondent. This should lead to a more conciliatory process.
2. No contest
The Act will remove the possibility to contest (defend) the divorce “other than on the basis of jurisdiction, the legal validity of the marriage, fraud, coercion and/or procedural compliance”2. Contesting a divorce leads to delay and elevated legal costs, and can cause the parties to deviate their attention from more important issues, such as financial matters or the welfare of their children.
Indeed, if a contested application is successful in the current system, the petitioner then has to wait 5 years until they can petition for divorce (on the grounds of 5 years’ separation without consent). Even then, the spouse can still contest the divorce on the grounds that it will cause them financial hardship. Under the new system, this would no longer be relevant, preventing, in some cases, survivors of domestic abuse from being trapped in a marriage for 5 years where their abuser is able to continue to exercise control over them.
3. Joint application
The new Act will provide for both parties to be able to petition for divorce on a joint basis, further promoting a more harmonious process and making it easier to share the costs and conduct the divorce process in a way that both parties consider fair.
4. 20-week grace period
There will be a minimum of 20 weeks between lodging the petition and filing for Decree Nisi (the penultimate stage). The minimum 6-week and 1 day wait between Decree Nisi and Decree Absolute will remain. This 20-week grace period will give some couples a chance to change their minds, whereas previously they may still have been feeling bitter over what was said in the petition.
Backed by The Law Society, Resolution, many family solicitors and MPs, it always seemed likely that the Bill would be given Royal Assent. Whilst seen by many as long overdue, the changes have been slammed by some groups who believe that they will undermine the institution of marriage, making it too easy to get out of and that therefore people will not take marriage seriously, in turn increasing the rate of divorce, causing further changes to society.
The Scottish model
In 2006, Scotland, the law of which is separate to that of England and Wales, introduced ‘no-fault’ divorce for couples who had lived separately for at least one year. A BBC article3 compares the Scottish system before and after it changed. When the law was introduced, the divorce rate spiked (from 10,875 in 2005 to 13,012 in 2006) but it quickly fell again, and Scotland has seen a continued reduction in the divorce rate since then. In 2017, there were 6,766 divorces.
In 2015 in Scotland, 6% of divorces relied on adultery or unreasonable behaviour and in England and Wales, it was 60% (Office of National Statistics). Prior to the change in the Scottish law, adultery and unreasonable behaviour were the most common grounds for divorce in Scotland too.
So it seems, on the face of it, that the ‘no-fault’ divorce system could actually reduce the divorce rate in the long run, although the article and the statistics do not consider any other reasons for the downward trend (e.g. societal changes leading to fewer marriages). In addition, 2006 was when the credit crunch hit, which must have put huge pressure on some marriages, and that could have had some bearing on the statistics.
Time will tell, of course, and until the Bill is enacted in late 2021 the current law still applies. If you would like to discuss your options, please contact us.
1Owens (Appellant) v Owens (Respondent) [2018] UKSC 41 On appeal from [2017] EWCA Civ 182
2 https://www.familylaw.co.uk/news_and_comment/the-divorce-dissolution-and-separation-bill
