The Divorce, Dissolution and Separation Act (2020) has ended the need for couples separating to assign blame for the breakdown of their marriage. Contrary to popular belief, there is only one ground for divorce: that the marriage has 'irretrievably broken down'. Previously, there were five defined reasons, one of which had to be shown to demonstrate the marriage had irretrievably broken down. Those reasons were:
- Adultery
- Unreasonable behaviour
- Desertion
- Separation period of two years if other partner consents to divorce
- Separation period of five years, consent not required
The first three are fault based reasons for divorce, unreasonable behaviour being the most common. Rather than requiring that one of these five reasons is shown, the new law will ask a couple simply to write a written statement explaining why the marriage has irretrievably broken down. It can no longer be contested. Previously, to obtain a 'no fault' divorce, a two year period was required if the other party consented or five years if they did not, as outlined in the five reasons above.
A couple can now make a joint application for divorce, which potentially removes an imbalance of the previous system where one party would file for divorce. The new law sets a minimum period of 20 weeks from the initial divorce application and the conditional order, and then a further six weeks from the conditional and final orders. In practice, this means the quickest divorce will take six months, which is longer than the process before taking four months at its quickest.
Petitioning under unreasonable behaviour required a two year wait since the marriage began before being able to start divorce proceedings. Even though the processing time has increased by two months, the reality is many unhappy marriages will resolve sooner since the two year time limit has been reformed. There is no required period of waiting under the new rules.
Reception for this change has been largely positive. The fault based system requiring blame would generate animosity between the couple, making it harder for parties resolve parental issues which could negatively impact their children. Additionally, the blame based system had the consequence of making the division of assets more acrimonious.
In 2018, the Supreme Court was forced to refuse Trini Owens, 68, permission to divorce her husband, 80. They had been married for 40 years. Mrs Owens had cited unreasonable behaviour, yet her husband contested the divorce. Whilst the original judge accepted the marriage had broken down, he found her examples of unreasonable behaviour to be 'flimsy and exaggerated'.
The case attracted significant public attention, highlighting how the law forced a woman who was unhappy in her marriage to stay in that marriage until she had lived separately from her husband for five years. I tweeted about this, and my support for no fault divorce at the time.
The Supreme Court found in Mr Owens' favour, albeit expressly stating they were reluctant to do so but were required to follow the law. Mrs Owens made the legal argument that she should not have to prove that her husband behaved unreasonably, rather that she should not 'reasonably be expected' to remain in the marriage. The Supreme Court rejected this argument.
Since Mrs Owens had only lived separately from her husband since 2015, she was required to wait the full five years until 2020 to get an uncontested divorce. Financial circumstances can often hinder the speed at which an individual is able to move out of the matrimonial home. This is a clear example of how the required time and conditions of the old no-fault legislation impacted people's lives, especially when there was an imbalance of resources. The Supreme Court stated it was a matter for parliament to change the law regarding divorce and with this reform; that change has now, thankfully, taken place.