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No-fault divorce regime still has its problems

Michael Gregory

Michael Gregory

From April 6 this year the law surrounding divorce in England and Wales experienced its biggest transition since the 1970s, through the introduction of no-fault divorce following the Divorce, Dissolution and Separation Act 2020. 

Previously, in order to successfully divorce a party would need to show that the marriage had “irretrievably broken down”, and would have to support that with one of five facts – three of which involved alleging the fault of one party, that is, adultery, unreasonable behaviour and desertion. 

No-fault divorce has changed that enormously. 

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Now, while a divorce petition must still contain the statement that a marriage has irretrievably broken down, that is all that is required. No further evidence is needed and that is why both the profession, the media and the public at large are now terming the new regime 'no-fault divorce'.

The aftermath

The arrival of this new regime was greeted with much acclaim. The aim of the new legislation is to remove high level animosity between parties by removing the need to effectively sling mud at the other.

The new process allows parties to make applications for divorce jointly if they so wish, and the process has now been streamlined and can be done through an online portal, which makes things much smoother and easier for parties to traverse the whole process without a solicitor. 

I myself am an advocate for the new process, especially after the bitterly fought case of Mr and Mrs Owens back in 2018, where Mrs Owens was denied her divorce on the grounds of the unreasonable behaviour she alleged against her husband and this was fought right up to the Supreme Court with extremely high costs, both monetary and emotionally, for all involved.

Also, after many years in practice and witnessing the upset the contents of a petition can cause, I indeed welcome the change. 

New label needed?

However, since the onset of no-fault divorce, in practice I have experienced an unexpected response from some divorcing clients. 

Some clients, especially those that have been in domestically abusive relationships, feel somewhat aggrieved that at the point of divorce it is being suggested that the marriage has broken down through 'no fault' of either party. 

We are finding ourselves having to explain to parties that all that is now needed is a statement that the marriage has broken down, it does not have to been backed up with evidence, like in the old regime. 

Some parties really do still want to set out in detail the reasons they have found themselves at this juncture. It may very well be the case that what is needed to counteract this is a different label.

The legislation did not create the label of 'no-fault' divorce, the profession and the media did. Perhaps it is mindset that needs to shift here on how the new regime is rationalised and explained to the potential divorcee. 

Financial considerations

It would also be commonplace under the old regime that if a party was accused of unreasonable behaviour, for example, if it was clear where the 'fault' lay, then an order for costs could be applied for.