This is a short commemoration of divorce as we have known it for the last 49 years and an unashamed “hoorah”; thank goodness it’s finally changing.
The new Divorce, Dissolution and Separation Act 2020 becomes “live” from 6 April 2022 and brings in no-fault divorce, enabling couples to end their marriages and civil partnerships without blame and following a civilised procedure. What a sigh of relief this will be to so many family lawyers.
I have been in practice since the late 1980s; about 15 years after the divorce law under the Matrimonial Causes Act 1973 came into operation. The 1973 Act was then a huge change, making divorce more likely to be uncontested and easier to obtain, especially for women. This was supposed to be the simple answer for unhappy couples who no longer wanted to be married. All that is required is to show the marriage has broken down irretrievably in one of five ways summarised as: unreasonable behaviour, adultery, desertion for two years, separation for two years with the consent of the other spouse or five years' separation without consent. Sounds easy enough… but like so many things, in practice it has never been easy.
One of the main presumptions of the 1973 Act is either that one party in the marriage is at fault for the breakdown of the marriage, or that couples “agree” on their divorce. Whilst undoubtedly some married couples and civil partners fall into this category, many do not. No one person is usually solely responsible for the breakdown of a relationship. Couples are also frequently at different stages in the divorce/dissolution process; from the extremes of one accepting the relationship has broken down and wanting everything to be resolved immediately, to the other person being in shock and devastated and nowhere near ready to consider separating, let alone thinking about the "D" word. These tensions undoubtedly play out in how people deal with and respond to a divorce or dissolution. Some examples of this are given below.
In the hundreds of divorce petitions I have been involved in on the basis of one party’s unreasonable behaviour, not one has accepted that all the conduct alleged is true and correct. At best it is accepted that it is the other’s opinion. This leads to the question of what conduct is sufficient to justify a case of unreasonable behaviour. I do recall one petition where the husband was accused by his wife of neglect because of his fishing hobby. When questioned further he admitted he fished all weekend and most evenings of the week but he did not consider that neglect. Is this a problem in perception only?
The fact is that no one likes something recorded in writing that is unpleasant about themselves, and however amicable a divorce/dissolution is, they will undoubtedly feel hard done by when allegations are made (whatever the truth may be). It is difficult to ignore what is being said by someone they have loved and not allow that to impact how they then deal with other issues (such as child arrangements and finances). The usual practice for many years before the case of Owens v Owens in 2018 was to keep the allegations to be as mild as possible to avoid upsetting a respondent to a petition too much. In the Owens case, however, the respondent-husband managed to defend the behaviour petition, stating that the allegations were not unreasonable enough for a court to dissolve the marriage. He succeeded and the result was that his wife was forced to stay married to him in 2018, which seems absurd in this day and age. After the Owens case, petitions became noticeably more forceful but that in turn caused more delays because of the upset the allegations caused. The only way around this has been to spend more time counselling a party and encouraging them to not admit allegations but not to defend the divorce petition either, because it will make no difference to the outcome. A hard choice, particularly if someone is not ready to accept the breakdown of the relationship.
Petitions for adultery have also caused unforeseen problems. When I first started practising, the third (adulterer) party had to be served with the petition as well as the spouse. This led to all sorts of bad practices, especially with private detectives being hired to get names and details of the adultery as proof. The co-respondent receiving the petition would usually feel affronted and the case could get incredibly confrontational even before it started. Sometimes there were bizarre outcomes. I usually had a case or two a year where the spouse would admit the adultery but the co-respondent would not or the other way round. The petitioner in these cases would often have to give up and start on another ground. After the rules changed and co-respondents did not have to be served or even named, it became much easier to sight adultery but that still did not get around the spouse who refused to accept the marriage had broken down and would not admit to adultery. (This was not a problem for civil partners who did not have the "adultery" choice.)
Two/five years’ separation
The outcome for the majority of people who do not want to go through with fault-based divorces/dissolutions is to wait. In doing so, they hope that sooner or later the other party will agree to a divorce or dissolution after two years. At worst they will have to wait five years if no agreement is forthcoming. In the meantime, they need to try and reach agreements on everything else because a court cannot consider their position generally. A court will only look at the finances once the divorce /dissolution proceedings have started. A catch 22 if ever there was one! In my cases, this has led to fault-based petitions being issued even when parties would have normally agreed to wait.
Even where everything is agreed upon, what I observe, however, is that a lot can happen in two years (let alone five) and delaying a divorce/dissolution can lead to unforeseen complications especially with new relationships and children being born outside the marriage/civil partnership. All this can become very expensive and not only in terms of legal costs but also in stress and time.
In summary, this whole system is outdated. In essence, the court has been determining for the last 49 years whether there are enough reasons to show an irretrievable breakdown of marriage/civil partnership for one person to divorce another. Yet in making this decision, nothing turns on it save that a divorce or dissolution is granted. Whoever is at fault in the petition will not be punished in any particular way. It does not affect the child arrangements or finances. So what has been its purpose? To allow parties to express their anger and upset in public possibly? No one is listening. I venture to say that the reason why relationships break down is a personal matter and both parties will have their respective perceptions of why this happened. It does not need to be decided by a court.
A court cannot save a marriage/civil partnership, and if there is a chance of reconciliation before the D word is on the menu, parties are best to spend time on relationship counselling. If the relationship has broken down it needs to be acknowledged and the courts can then process the divorce/dissolution in a modern way, focusing on the essential matters that do need addressing as a consequence of the breakdown... on the children in particular. This is where the new 2020 Act comes into its own.
The new "no blame" divorce will refocus everyone’s energies, including family lawyers, in the right direction. This does not mean that people will not feel aggrieved and upset if their marriage/civil partnership breaks down. Nor does it mean that everything will be agreed upon. The difference is that couples going through a divorce/dissolution will not have to try and justify to a court why their view of the cause of the breakdown of marriage is correct, or wait for years of separation to pass. This means that there will be one less matter to worry about. So, I think we should definitely celebrate as we pass from one era to another. This feels like a change for the better.