End to the Fault-Based Divorce System: A New Horizon for Separating Couples
A blog by Blue Stephenson, Trainee Solicitor in the family department
The current legal framework governing divorce in England and Wales derives from the Matrimonial Causes Act 1973; a statute that has remained mostly unamended since its enactment 48 years ago. The Civil Partnership Act 2004 provides an analogous framework for the dissolution of civil partnerships.
Like many other areas of the law, the law on divorce and dissolution has been slow to catch up with societal changes and is still a fault-based system (save where the parties have been separated for at least two years and the other party consents, or for five years without the other party’s consent).
The Petitioner must satisfy the Court that the marriage has ‘broken down irretrievably’. In satisfying this requirement, the Petitioner must rely on one of five ‘facts’: adultery, unreasonable behaviour, desertion for a period in excess of two years, two years separation with consent, or five years separation without consent.
In cases where the non-fault-based facts do not apply, and in the absence of any adultery, the Petitioner is left to outline the Respondent’s ‘faults’ in an unreasonable behaviour petition. Clearly, in cases where emotions are high (as they may be for recently separated couples), the receipt by the Respondent of a petition highlighting their unreasonable behaviour often serves only to add fuel to the fire and increases acrimony between the parties. In cases where parties are amicable but have not been separated for two years, an unreasonable behaviour petition can often be a barrier to what may otherwise have been an amicable divorce.
The 2018 case of Owens v Owens brought into focus the desperate need for reform when the Petitioner Mrs Owens was denied a divorce from her husband who successfully defended the suit on appeal to the Supreme Court. Their Lordships professed that it was a troubling case but were clear that their hands were tied by the statute.
After many years of campaigning amongst the legal profession, this decision cast the need for matrimonial law reform into the spotlight. The outcome of this is the Divorce, Dissolution and Separation Act 2020 which will come into force on 6th April 2022. Principally, the Act will see a welcome move away from the current fault-based system by removing the requirement to establish a ‘fact’ in support of a divorce petition. Instead, from 6th April 2022, a Petitioner for divorce will simply be required to produce a short statement of irretrievable breakdown meaning that those parties who may not be able to point to specific behaviour on the part of the other spouse will no longer be denied a divorce. Furthermore, Respondents will no longer be presented with the option to defend a divorce petition, providing a greater degree of certainty and alleviating concern for those individuals who find themselves in a similar position to Mrs Owens.
If you are recently separated and contemplating a divorce, we have a team of legal specialists on hand at Pepperells Solicitors to support you through this difficult time. If you wish to set up an initial appointment with one of our divorce specialists, please do not hesitate to contact our friendly team at Pepperells.
