Winter 2022No fault, no blame

Molesworths Bright Clegg trainee solicitor, Katy Dunn, reviews the most significant change to divorce law since 1973.

Divorce is a painful and stressful process. Legislation governing divorce law and marriage in England & Wales had, for a long time, been governed by The Matrimonial Causes Act (1973). This had placed apportioning fault and blame within relationships as the central ground within divorce, arguably adding to the already unpleasant nature of divorce.

On 6 April 2022, a new and long-campigned for piece of legislation brought major changes, when the Divorce, Dissolution and Separation Act 2020 came into force.

The Old Law

Under the 1973 Act, the ground for divorce was the ‘irretrievable breakdown of marriage’ based on proof of one of five ‘facts’. ‘Facts’ included the respondent’s adultery, unreasonable behaviour, desertion (if deserted for two years continuously without consent), two years’ separation with the respondent’s consent or five years’ separation without.

The first three ‘facts’ required the respondent to be blamed for the breakdown of the marriage. Despite this, many couples understandably continued to proceed to divorce, based on one of the first three fault-based facts, to avoid the need to wait two to five years to divorce. Additionally, the most common application was ‘unreasonable behaviour’, often used even if the applicant believed their spouse had committed adultery as this still needed to be proved if denied.

In today’s society we expect different things from marriage than we perhaps once did. To many people, individual happiness is valued with higher regard than remaining in a relationship simply because it is the ‘right thing to do’. Commonly, fault is not a factor of marital breakdown at all. Attributing fault, which may in reality be nonexistent, to one party for marital breakdown inevitably created tension, added further unpleasantness to an already difficult situation and often made agreeing arrangements for the children of the family and reaching a financial settlement difficult to achieve.

The New Law

The introduction of the Divorce, Dissolution and Separation Act 2020 has been the biggest reform of divorce law for almost fifty years. The act now allows parties to apply to court for divorce by stating that their marriage has broken down irretrievably without apportioning any blame. A divorce application can now be issued by one party to the marriage or as a joint application. Instead of using one of the five facts to support their application, the only requirement is for one party to confirm that they believe the marriage has irretrievably broken down.

The new act has created a twenty-week period of reflection allowing time for couples to agree financial arrangements and providing opportunity to reconcile. If separation is inevitable, relations can perhaps still be maintained.

Conclusion

Divorce will never be anything other than difficult and stressful for all parties concerned. However, no-fault divorce has reduced the amount of hostility and conflict that the old law inevitably created between parties by placing often exaggerated and undeserving blame for relationship breakdown entirely on one party.