Property  

What the 'no-fault' divorce bill entails

  • Explain what has prompted the latest change in divorce law
  • Describe what is wrong with divorce law as it stands
  • Identify what divorce would mean under the new law
CPD
Approx.30min

Importantly, there is also less stigma associated with divorce today since it affects nearly 50 per cent of all marriages. 

Historically, however, a divorce was considered a rare and scandalous occurrence.

Before the 1857 Matrimonial Causes Act, divorce was generally only available to men and granted by an Act of Parliament (which as you might imagine was extremely costly to obtain, and so only accessible to those of significant means).

The 1857 Act introduced statutory divorce which was open to both men and women (although for women to divorce they had to not only prove their husband’s adultery, but also couple this with other faults such as rape or incest). In the early 20th century, around 0.2 per cent of marriages ended in divorce. 

After WW1, further reforms were introduced via the Matrimonial Causes Act 1923 which sought to make it easier for women to ask for a divorce even if they still had to prove adultery. Then in 1937, three additional grounds were recognised: desertion for two years or more, cruelty or incurable insanity.

The Divorce Reform Act 1969 was the last significant shift in divorce law and is the basis of the current legislation. 

Inevitably, broadening the grounds for divorce alongside changing attitudes saw divorce rates double in a few years in England and Wales from 51,310 in 1969 to 106,003 in 1973. Two decades later divorce rates had increased to 165,018. 

The latest data on divorce from 2017 actually shows a steady decline in the number of divorces – although this is at least partly because the rate of marriage has fallen by over 30 per cent over the last 40 years.  

There was an attempt to introduce no-fault divorce in The Family Law Act 1996, but pilot schemes failed and the relevant sections of the law were repealed. 

So, it was not until 2016, when the need for reform of the law was brought into sharp focus by the case of Owens v Owens. Mrs Owens petitioned for divorce on the basis of her husband’s unreasonable behaviour.

The husband contested the divorce and denied her (actually quite anodyne) allegations. Mrs Owens was therefore allowed to amend the petition to expand on the examples of her husband’s behaviour. This she did, listing 27 examples including that he disparaged her in front of others. 

Despite the judge at the first hearing finding that the marriage had irretrievably broken down, it was held that Mrs Owens had not proven the fact of the husband’s unreasonable behaviour and therefore she could not proceed with the divorce. The Court of Appeal and the Supreme Court upheld this decision.

As a result, the unfortunate Mrs Owen had to remain married until 2020 to a man with whom she had no intention of reconciling (at which point they would have lived separately for a continuous five-year period).

CPD
Approx.30min

Questions appear on the last page of this article.