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.
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.
This is now not the case. While costs orders can still be applied for, they will not be as commonplace and in fact applications of this sort are being actively discouraged.
Permitting costs orders when no fault is alleged seems counter intuitive, hence the change of approach here. Only where a party has behaved inappropriately in relation to the divorce proceedings themselves can costs even be considered, not because of their behaviour during the marriage.
This in itself is difficult to explain to a party who has been the subject of domestic violence, for example.
Lastly, because the procedure can now be undertaken online without the need for lawyers, it can easily progress to the final order stage without anyone taking any advice.
This can have a major impact on the financial situation between parties, especially in the event of one of the parties dying. A party may no longer have the protection of any widow/widower’s pension rights or benefits should a party die before the other, as their marriage has already been dissolved and ended before a pension share can take effect.
So while on the whole the new regime is a welcome change and a breath of fresh air, as time is passing we are starting to see some of the issues with the changes surface.
Michael Gregory is a partner at Lowry Legal
