Our expert advice on no fault divorce and what it means

No-fault divorce in the UK

Over the last few years, the introduction of no-fault divorce has gained much media attention. Within this article, Claire O’Flinn and Carys Mason discuss the background to divorce reform and what such reform will look like going forward.

Background

Divorce reform is not a new subject. Many key individuals and practitioners within the family law sphere have advocated for change for over 20 years, including the Law Society and members of Resolution, a network of family law professionals who work to resolve issues in a constructive way. In 1996, the Government introduced the Family Law Act 1996 which included the concept of no – fault divorce, however that provision was later repealed. Historically, divorce law reform has not been considered a priority. In fact, the Matrimonial Causes Act 1973 remains the governing legislation.

The current position

Current law sets out that in order to apply for a divorce, a spouse needs to demonstrate that their marriage has broken down irretrievably, by relying on one of five facts. These facts are as follows:

1.?????Adultery;

2.?????Unreasonable behaviour;

3.?????Desertion;

4.?????Two years’ separation with consent; and

5.?????Five years’ separation.

Desertion is a fact which is not often relied upon in practice and will therefore not be addressed here. The remaining facts are either based upon “fault” or a period of separation. Where an individual wishes to commence divorce proceedings but they have not been separated from their spouse for at least two years, they are therefore left with the fault-based facts of adultery or unreasonable behaviour to demonstrate that their marriage is broken down beyond repair. Adultery can be tricky as it requires either (i) the offending spouse to admit to the adultery within the divorce process, or (ii) the applicant to provide proof of the adultery being committed. Many individuals therefore find themselves with little choice but to proceed with the fact of unreasonable behaviour. The test here is as follows:

Has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with them?

An individual proceeding on this fact is required to set out examples of their spouse’s unreasonable behaviour within the divorce application.

Why do we need a change?

What if, as in many cases we see, a couple has drifted apart and jointly conclude that they no longer wish to be together? What if both individuals have contributed to the marriage breakdown, and neither of them feel the other is solely responsible? What if the couple have worked hard to maintain an amicable relationship following their separation (particularly where there are children involved) and neither wishes to revisit the history of what led to their relationship coming to an end? The world is a different place to what it was in 1973.

Many people will have heard about the case of Owens v Owens, which made its way through the Court system and ultimately to the Supreme Court in 2018, which highlighted the issues with the current divorce law. In this case, Mrs Owens petitioned for divorce from her husband in May 2015, seeking to demonstrate that their marriage had broken down irretrievably on the basis of Mr Owen’s unreasonable behaviour. She described her marriage as “unhappy” and “wretched”, amongst other things. Mr Owens chose to defend the petition, stating that his behaviour could not be deemed as unreasonable within the context of their marriage, and the examples Mrs Owens gave of his behaviour were not sufficient to satisfy the test referred to above.

Mr Owens was ultimately successful, and the Supreme Court ruled that the behaviour Mrs Owens sought to rely on was not sufficient. Whilst the Supreme Court Justices agreed that the outcome was not at all satisfactory for Mrs Owens as her marriage had clearly broken down, they were bound by the law. Indeed, Lady Hale remarked, “It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us”.

Mrs Owens therefore had to remain married to Mr Owens until 2020 (by which time she will be aged 70), when she could rely on the fact of five years separation, which did not require his consent. Her lawyer at the time stated that she was “devastated” and that she “cannot move forward with her life”.

This case marked a stumbling block for family practitioners, who like us had become accustomed to preparing mild, anodyne examples of behaviours in order to avoid unnecessary acrimony for our clients. We now often consider it necessary to “beef up” examples of unreasonable behaviour as part of the divorce process in order to avoid the issue Mrs Owens faced. This is often unsatisfactory, as it can the raise temperature between a separating couple, which leads to further upset and distress, as well as sets the tone for other arrangements that need to be made on divorce including in relation to the parties’ finances and arrangements for any children.

The future

Thankfully, the Ministry of Justice confirmed in July 2018 following the decision in Owens v Owens that divorce reform would be considered further, which was very much welcomed by all in the family law world. As a result, the Divorce, Dissolution and Separation Bill was first introduced to Parliament in June 2019, and finally received Royal Assent in June 2020. It will come into force on 6 April 2022 and will see the introduction of “no-fault” divorce, as follows:

1.?????The five facts set out above will be replaced with a requirement to provide a statement of irretrievable breakdown, which the separating couple can choose to make jointly if they wish.

2.?????The possibility of contesting the divorce application will be removed.

3.?????The language used within the divorce process will be plain English, avoiding legal jargon.

4.?????There will be a minimum period of 20 weeks from the start of divorce proceedings to the conditional order of divorce being granted, the idea being to provide separating couples with more time to agree other arrangements in connection with their separation.

We, like many other family law professionals, very much hope that in removing the element of blame in the divorce process, unnecessary conflict can be avoided. We as lawyers can focus our time and expertise assisting individuals to deal with the other arrangements that need to be made following separation, particularly in relation to financial matters and arrangements for any children. These aspects can be complex and require considerable thought and advice but by using non-confrontational, positive approach, lasting agreements can be reached looking to the future, rather than attributing blame in the past.

Claire O’Flinn (Partner)

Claire is an experienced family solicitor who has specialised in high net worth family law since 2000 and heads an renowned team. She is skilled in resolving the complex financial consequences faced when a relationship breaks down, whether the couple is married, in a civil partnership or unmarried. Claire’s expertise extends to acting for parents in disputes concerning their children, with high success of reaching solutions without making court applications. She is committed to helping couples part with dignity and to minimise the impact on the family. Her clients are wealthy individuals based nationally and internationally.?She is a trained collaborative lawyer and mediator.

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Carys Mason (Senior Associate)

Carys advises on divorce and the associated financial issues, matters involving children, co-habitation disputes and injunctions related to family relationships. She regularly works alongside Claire O’Flinn on high net worth and ultra-high net worth cases. Carys has experience in dealing with matters both in court proceedings and using alternative dispute resolution where possible.

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