A major milestone in family law will be reached as the Divorce, Dissolution and Separation Act of 2020 comes into force on April 6th, enabling no-fault divorce in England and Wales. Until now, divorce has been granted on the basis of ‘facts’ contributing to marital breakdown – e.g., adultery, unreasonable behaviour – and including substantial periods of separation (two years where both partners agree on divorce, five years where there was no agreement). Now, spouses will be able to file for divorce without citing a reason or blaming their partner, and, if they wish, they can file jointly. The new law also means that a petitioner can file for divorce without the respondent having the option of going to court to prevent it – the days of the contested divorce are over, in all but very limited technical circumstances.
And it is a famous case where one partner did not consent to divorce, which has contributed to the passing of the new divorce law. In 2016, the case of Owens v Owens gained widespread attention, when a Family Court judge ruled that although the marriage had broken down, the petitioning wife had failed to prove according to the law that her husband had behaved so as to make it unreasonable to expect her to stay. Subsequent appeals in the Court of Appeal and the Supreme Court agreed. In the eyes of the law, the threshold for granting a decree nisi on had not been reached. All the judges concerned recognised that this left the petitioner in a very difficult position, consigned to wait 5 years before being able to obtain a divorce, as her husband did not consent. This case gave impetus to an existing campaign for divorce law reform, so that such an unhappy result could not easily occur again.
Back in the 1990s, there was a previous attempt to introduce no-fault divorce which almost made it over the line. The Family Law Act of 1996 proposed a divorce process through which prospective divorcees would attend an information meeting, file a statement of marital breakdown, and then go through a period of reflection during which details of an eventual settlement could be considered. There was a lot of emphasis on the process as enabling the saving of ‘saveable marriages’. However, pilots of the information meetings, which signposted mediation and raised the possibility of reconciliation, found that the intervention was essentially too late. Couples were embarking on the divorce process when the possibility of marriage continuing had already been ruled out. The proposals were shelved, ostensibly because of the failure of the information meetings, but perhaps also because of the strength of a body of opinion opposed to no-fault divorce legislation, on the grounds that it weakened traditional marriage.
However, it’s long been clear that fault cited in divorce petitions may bear little relation to underlying reasons for marital breakdown. The old practice of arranging a weekend by the seaside so that one spouse’s adultery could be witnessed (as recently re-enacted on television in the period drama The Ipcress Files) illustrated the scope for collusion and hypocrisy in mid-twentieth century law. Some may currently use fault simply to get divorced more quickly than separation grounds allow. Research in the lead-up to today’s reforms showed that many divorcees disagreed with the fault attributed to them. This research also showed that a substantial majority of both petitioners and respondents in divorce cases thought that using fault had made divorce more bitter. There was no evidence that identifying fault acted as a deterrent to divorce.
The context has changed in some important ways since the last attempt at reform. Up until the 1990s, the divorce rate was rising, but the trend since then has been more uneven and largely downward. There is therefore less of a sense of a crisis to be addressed for those with traditional views. Furthermore, marriage rates are now lower, as people tend to marry later, and cohabitation and childbirth outside marriage have become more common and accepted. In this context, divorce is less of a hot button issue. Underlying these changes in behaviour, are long-term changes in values, encapsulated in changing attitudes mapped over recent years. A growing majority view cohabitation and marriage as little different from one another, and disapproval of divorce where children are involved has decreased. These changes have likely made the long-running campaign for no-fault divorce less contested this time. Rather than highlighting possibilities for reconciliation, the new law has been more framed as reducing conflict in the divorce process and encouraging amicable arrangements concerning money and children. The new legislation enforces a gap between applying for divorce and the ‘conditional order’ (formerly decree nisi) of 20 weeks, so the quickest possible divorce may actually be slower than previously. The nuts and bolts of financial settlement and arrangements for children face prospect of further changes in a Bill currently progressing through the House of Lords. It’s here that some thornier issues around fairness in settlements may arise.
In a speech in 2019, Baroness Hale pointed out that the proposals in the Divorce, Dissolution and Separation Act (then Bill) bore remarkable resemblance to those outlined in the 1990s. The demand for no-fault divorce has been around for a long while. Perhaps the new Act provides an answer to the old exam question – does the law change behaviour or respond to changing behaviour? In the case of no-fault divorce, the law seems to have caught up eventually.
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