Government commits to 6 April 2022 for ‘no fault’ divorce.
On 7 June 2021 it was announced that the Divorce, Dissolution and Separation Act 2020 will come into force on 6 April 2022. Among other changes to the law, the Act will allow couples to divorce without assigning blame.
Currently a divorce petition in England and Wales can only be filed at court after a couple has been married for at least one year. There is only one ground for divorce which is that there has been an irretrievable breakdown of the marriage. The person applying for the divorce must also establish one of five facts:
- The other person has committed adultery and they find it intolerable to live with them.
- The other person has behaved unreasonably and they cannot reasonably be expected to live with them.
- The other person has deserted them for two years.
- They have been separated for two years and the other person consents to the divorce.
- They have been separated for five years and the other person does not consent to the divorce.
At present if a couple wish to divorce amicably one must either rely on the other person’s unreasonable behaviour or they must wait until they have been separated for two years. Remaining married for two years after separation may add financial burdens to the parties and tie them together when they both wish to move on with their lives. If the parties wish to divorce immediately, one person’s unreasonable behaviour must be relied upon. Previously the behaviour examples could be mild and, usually, as long as the other person agreed to the divorce petition the divorce would proceed. The need for Parliament to reconsider the law on divorce was brought to the forefront by the well-known case of Mr and Mrs Owens.
Owens v Owens
Mrs Owens petitioned for divorce in 2015 after 40 years of marriage because, she said, the marriage had broken down and Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens defended the divorce arguing that the behaviour referred to by Mrs Owens had not been unreasonable in the context of their marriage, and as such that she could reasonably be expected to live with him.
In the initial hearing which lasted one day, the judge dismissed Mrs Owens’s petition finding that the behaviour examples given were too flimsy and were of a kind to be expected in a marriage. Mrs Owens appealed the decision twice.
The Supreme Court dismissed Mrs Owens’s appeal finding that Mrs Owens had failed to persuade the Court that Mr Owens’s behaviour was unreasonable. They found that it was not for them to change the law laid down by Parliament, their role was only to interpret and apply the law. They invited Parliament to consider replacing the law. As such Mrs Owens had to remain married to Mr Owens until they had been separated for five years when she could apply for the divorce without his consent.
The outcome was that parties may have to use more severe examples of unreasonable behaviour in order to ensure that the behaviour would be considered unreasonable. Using more severe examples of unreasonable behaviour increases the animosity between separating couples.
The Divorce, Dissolution and Separation Act 2020
The long-standing campaign for ‘no fault’ divorce continued to ask Parliament to reform the requirements for divorce and amend the law accordingly. The Divorce, Dissolution and Separation Act 2020 was made on 25 June 2021 and reforms the legal requirements and process for divorce, dissolution and judicial separation. The main points from the Act are:
- It retains the requirement that parties must be married for one year before starting divorce proceedings.
- It retains the one ground for divorce that there has been an irretrievable breakdown of the marriage.
- It removes the requirement to establish one of the five facts. As such no evidence of the relationship breakdown is required.
- It allows both parties to make a joint application where the decision to divorce is mutual.
- It removes the possibility of contesting the decision to divorce. Divorce proceedings can still be challenged for other reasons such as jurisdiction.
It is hoped that this long-awaited change in divorce law will allow couples who are divorcing to proceed more amicably without the potential cost and stress of defended divorce proceedings.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.