No-fault divorce legislation passed
After passing both Houses, on 25 June 2020, the Divorce, Dissolution and Separation Act 2020 (‘the Act’) received Royal Assent. The Act itself is very short, but makes significant amendments to the Matrimonial Causes Act 1973 and Civil Partnership Act 2004. Below we explore the following questions in relation to the changes to the Matrimonial Causes Act 1973:-
- What is the current law?
- Why the change?
- What are the changes?
- How does this compare with other commonwealth countries?
- What are the potential consequences?
What is the current law?
Currently in order to apply for a divorce, the person applying (called the ‘Petitioner’) must lodge a petition under section 1 of the Matrimonial Causes Act 1973. The ground for seeking a divorce is that the ‘marriage has broken down irretrievably’. The same section establishes what amounts to irretrievable breakdown:
- Adultery (by the person not applying for a divorce, the Petitioner cannot apply on the basis of their own adultery);
- The behaviour of the other spouse is such that Petitioner cannot reasonably be expected to live with their spouse;
- Desertion by the other spouse;
- Separation of the parties for at least two years where both spouses agree to apply for a divorce;
- If there is no agreement to divorce, separation of the parties for at least five years.
Why the change?
As above, three of the five circumstances that amount to grounds for a divorce are fault-based. Under the current law, if it is important to you to obtain a divorce in a timely manner you need to allege fault. If you don’t, you may be left in a position where you have to stay legally married for five years. This was the case in the highly publicised Owens v Owens  UKSC 41. Perhaps this case was the impetus for change.
In this case, Mrs Owens petitioned for divorce in May 2015 on the ground that her marriage to Mr Owens had broken down due to his behaviour being such that it would be unreasonable to expect them to continue cohabitating. Mr Owens defended the petition, arguing that his behaviour in the context of their marriage had not been unreasonable. Mrs Owens lost the case at each stage, but the Supreme Court was left feeling uneasy, essentially expressing that their hands were tied due to the law laid down by Parliament. They concluded that it was not for the court to change the law and that their job was to interpret the law as enacted. In Lord Wilson’s judgment, he expressed that Parliament may wish to replace the law as it stands.
It could therefore be the case of Owens that sparked the need for change. Although most divorce petitions do not result in an expensive battle making their way to the Supreme Court, the case of Owens and the sentiments of the Judges in that case as to the state of the law, could well have been the impetus for change.
What are the changes?
Under the new Act, the ground for divorce continues to be “irretrievable breakdown” of a relationship. However, the process is different. Essentially the steps are:-
- An application is brought, this can be done either by one party or a joint application by both parties section.
- The application needs to be accompanied by a statement that the marriage has broken down irretrievably. No explanation or evidence of the breakdown of the marriage appears to be necessary.
- The court must take the statement as conclusive and in itself that the marriage has broken down, and must make a divorce order.
- The divorce order is first conditional before becoming final, with the timing as follows:
- 20 weeks after the proceedings have begun, the party or parties must confirm that they wish to continue with the application. With that confirmation, the court will make a conditional order (previously called “decree nisi”).
- 6 weeks after the conditional order is made, a final order is made (previously called “decree absolute”).
How does this compare with the commonwealth?
No-fault divorces have been the only method of divorce in Australia since 1975 and in New Zealand since 1980. In Canada, the Divorce Act 1986 brought in no-fault divorces. However, in Canada it is possible to apply for a fault based divorce, though according to firms in Canada, to do so would take longer and would be far more expensive than the no-fault route.
In Australia the parties must state that their marriage has broken down, which is established through the parties having lived separately for a period of at least 12 months. Living separately does not mean the parties have to live at different physical addresses, it is possible for people to live together and still be separated. For a no-fault divorce in Canada, the length of separation is also 12 months before a divorce will be granted. In New Zealand parties have to have separated for 24 months prior to making an application for a divorce (called a ‘dissolution’ in New Zealand).
Like Canada, an application here will be able to be made immediately upon separation, with the waiting period being post-application. This has been criticised by family law practitioners, as with Australia and New Zealand the application cannot even be brought until the parties have already been separated for the prescribed period (being 12 and 24 months respectively). This period is seen as time to reflect upon making the ‘momentous decision’ to bring a marriage to an end. Whereas here, there have been questions raised by practitioners over whether the 26 weeks here will really be a reflection period or just a “running down the clock” processing period.
What are the potential consequences?
The obvious consequence of the new law is that it will no longer be possible to raise allegations of adultery, desertion and bad behaviour. What is important is the potential flow on consequences:
- Potentially more financially advantageous for all parties, in that if a party is unable to contest a divorce, and less anxious to do so as there will be no allegations of questionable conduct, it is less likely that there will be an expensive and protracted court battle. This would reduce court fees, lawyer fees, as well as free up judicial resources to consider other cases.
- Potentially less animosity between the separating parties – as was said by Baroness Burt of Solihull during the second reading, it assists in taking the sting out of what is already a difficult time for those involved.
- In cases of domestic abuse, it allows the person abused to exit the marriage without having to relive their trauma, or waiting a period of up to five years while still married to their abuser.
- For a lot of those seeking a divorce, they may also be seeking a financial separation and hoping to resolve custody matters. Removing the possibility of a protracted contentious court proceeding that puts the parties’ private lives on display could assist in more civil financial settlements. It also seems unlikely that the interests of any child of the marriage will be furthered through its parents arguing about who is to blame for the breakdown of the relationship – removing that means that the welfare of any children of the marriage can be the primary focus.
Although the Act has received Royal Assent, there is no date for when the law will come into effect. It is rumoured that it is unlikely to be in force until Autumn 2021. Until then, the current law applies and the ability to attribute fault remains.
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Articles are intended as an introduction to the topic and do not constitute legal advice.