The Divorce Blame Game is Nearly Over

Sophie Kay was Called to the Bar in 2016. Sophie practises in family law at 5 Pump Court Chambers. She specialises in divorce, private children and domestic violence work. She was awarded the Jules Thorn Scholarship and is a member of the Attorney General’s Junior Panel of Counsel.

The Divorce, Dissolution and Separation Act 2020 (‘the Act’) received Royal Assent on Thursday 25 June 2020, having swiftly completed its passage through Parliament. It is remarkable that the Act was fact-tracked through its final parliamentary stages, especially during Covid-19, which exacerbated tension for many couples whose marriages were already strained. It is noted, however, that there was much debate surrounding the Act prior to Parliament’s prorogation, coupled with the 30-year campaign by family lawyers and organisations for no-fault divorce. The Act is long overdue. The Act is not the first legislative attempt to introduce ‘no-fault’ divorce. Divorce law was very nearly reformed by Part II of the Family Law Act 1996, which had allowed for no-fault divorce, provided couples took part in compulsory information meetings. However, this was never implemented and was quickly repealed. In 2013, Lord McNally said the decision to repeal was based on the results of pilot schemes of the information meetings, which showed that the meetings were unworkable, inflexible and not tailored to the parties’ individual circumstances.

When implemented, the Act will enable spouses to divorce without having to attribute blame or wait the minimum two years in a state of limbo as separated spouses, as prescribed by the current law. This is a landmark and welcomed Act, and represents the biggest shift in divorce law in this jurisdiction in over 50 years. The current law Under the Matrimonial Causes Act (MCA) 1973, in order to divorce couples must be married for at least one year, and must establish one of the five ‘facts’ to support the ground that the marriage has irretrievably broken down:

Adultery; Unreasonable behaviour; Desertion; The couple has lived apart for at least two years and both agree to the divorce (divorce by consent); The couple has lived apart for at least five years, even if one partner disagrees (divorce without consent).

Problems arise when a spouse disputes these facts and resists the divorce. If the divorce is successfully defended under one of the ‘blame’ grounds (adultery, unreasonable behaviour or desertion), the other spouse is trapped in the marriage for five years from separation. Many couples do not have the funds or time for their lives to be paused for such a long duration. This is plainly unsatisfactory and unjust. The Supreme Court’s rejection of Tini Owens’ appeal, where her husband refused to agree to the divorce, is an infamous example. At first-instance in Owens v Owens, it was found that the marriage had broken down, but not because of the 27 examples cited by Mrs Owens of unreasonable behaviour, which were deemed flimsy, exaggerated, and isolated incidents. For instance, she alleged that Mr Owens had been moody and argumentative and had disparaged her in front of others. Ultimately, this decision was upheld by the Court of Appeal and the Supreme Court, with Lady Hale stating that she, ‘found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us’. What is troubling is that Mrs Owens had to go to such lengths of citing 27 examples in an attempt to divorce her husband, whom she married in

…the current law results in divorce petitions painting often inaccurate descriptions of why and how a marriage broke down.

1978, but to no avail. What is even more troubling is that these 27 examples did not pass the threshold. What entitled the state to intervene in the personal lives of parties such that they can divorce only when ‘good enough’ reasons are provided, or when they are forced to wait years?

Once the decision has been made to end a marriage time is of the essence. It is imperative that a spouse is able to plan for their future, financially and emotionally, and move on with their life. The current law does not facilitate this, unless adultery, unreasonable behaviour or desertion is proven. Upon these facts being alleged, the first roll of the blame-game dice takes place. At this point, things are said or alleged which cannot be taken back, and tensions rise. As such, the discussions surrounding the division of matrimonial assets and the arrangements for children take place against a backdrop of animosity and are often derailed. Automatically, cooperation is reduced whilst confusion and conflict increase. This is not in the children’s best interests, and further facilitates the use of children as pawns, not to mention the negative impact on spousal mental health.

Further, the current law results in divorce petitions painting often inaccurate descriptions of why and how a marriage broke down. What constitutes ‘unreasonable’ behaviour is not clear to many litigants, especially unrepresented litigants. Not only is this contrary to the rule of law (since it is not intelligible, clear nor predictable), but it risks the inflation of allegations, or simply the use of more extreme examples of ‘unreasonable’ behaviour in order to cross the threshold.

The new law The Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, indicated to MPs that the Act will come into force in Autumn 2021. This is to allow time for the details of the rules, court forms and the online portal to be completed. Under the new law, spouses will be able to apply for a divorce on the ground that their marriage has irretrievably broken down, without having to establish one of the aforesaid statutory facts in support. The antiquated and absurd right to contest a divorce has been removed. As such, spouses will no longer be able to trap their partner by contesting the divorce, which has allowed domestic abusive spouses to exert further coercive control on their partner. The Act signifies positive reform, and will reduce conflict and costs for divorcing spouses by removing the need to negotiate the basis of the petition and dealing with crosspetitions. It will not allow ‘quickie divorces’, as suggested by some critics. It has introduced a notification system, where the applicant will have to wait a six-month notice period before the divorce is finalised.

Interestingly, both spouses will be able to apply for the divorce jointly, should they wish, which is symbolic in and of itself; it shows that these reforms are designed to make divorce kinder rather than easier. However, arguably, the notice period should begin once the divorce application is received, rather than when it is applied for. This would ensure that each spouse is on an equal footing, especially where the application is not made jointly. A further modernisation is the language. The terms Decree Nisi and Decree Absolute will soon be consigned to history and removed from the statute books; in their place will be ‘conditional order’ and ‘final order’.

It is sincerely hoped that the Act will affect lasting change, and will finally bring marriage law into the 21st Century. Canada established no-fault divorce in 1968, with Sweden following in 1973 (the same year as the enactment of the MCA) and Australia in 1975. Family lawyers provide a service to navigate through and reduce conflict for their clients. Unfortunately, the current legal framework in England and Wales is incompatible with this. Thankfully, the end of the intrusive investigative regime and the implementation of no-fault divorce is finally on the horizon.