No fault divorce – the end of the blame game?

It had been argued for some time that the divorce law of England and Wales should be updated to follow the direction of Scotland, America and Australia and allow ‘no-fault divorces’ meaning that couples could divorce after one year of marriage without stating why the marriage broke down or who was at fault.

Since the recent Supreme Court judgment in the Case of Owens v Owens 2017 it was clear to many that reform was needed. In this case the Judge ruled that the wife could not dissolve the marriage on the grounds of the husband’s unreasonable behaviour simply because she was unhappy. They considered her examples of the husband’s behaviour to be “flimsy and exaggerated”. As a result, Mrs Owens was unable to apply for divorce until 2020 when the fact of 5 years’ separation became available.

The Divorce, Dissolution and Separation Bill concluded its passage through the House of Commons in June 2020 which has amended legislation to allow couples divorcing under the law of England and Wales to be able to rely on the irretrievable  breakdown of the marriage on a‘no-fault’ basis . The Bill also removes the possibility of contesting the decision by one spouse to divorce and introduces a new option, allowing couples to jointly apply for a divorce, where the decision to separate is a mutual one.
Whilst the ‘no-fault’ legislation has been passed, it is yet to come into effect, and it is estimated that couples may not be able to rely on this option as a way to dissolve their marriage until Autumn 2021.

It is anticipated that the introduction of ‘no-fault’ divorce will result in a more amicable conclusion of the marriage and the associated proceedings. In turn, this will have a positive impact on the discussions relating to arrangements for the children of the marriage and matrimonial finances.

Molly Betts