In July 2018, in the case of Owens v Owens, the Supreme Court reluctantly ruled against a petition by the 68-year-old Tini Owens to be allowed to divorce her husband, who, in unusual circumstances, had chosen to defend her "unreasonable behaviour" divorce petition.
The consequences were bizarre and stark: she would need to remain married against her will until she could divorce him on the basis that they had lived separately for five years.
The case brought into sharp focus the serious pitfalls of the current fault-based system of divorce in England and Wales, triggering Parliament to consider long-overdue reform.
The result is the Divorce, Dissolution and Separation Act 2020. Although couples wishing to divorce won't be able to benefit from the new law until approximately autumn 2021, the new law will overhaul the current system of divorce, removing 'the blame game' that is fault-based divorce and in doing so, bringing England and Wales in to step with Scotland, most of Europe and the United States.
The current law
Currently, a person wishing to divorce their spouse or dissolve their civil partnership must prove that their marriage or civil partnership has irretrievably broken down. However, in order to demonstrate irretrievable breakdown, they must rely on one of five facts. Three of these facts are conduct-related and therefore inherently fault-based (unreasonable behaviour, adultery and desertion). The remaining two are based on periods of separation: two years separation with the consent of the other spouse, or five years separation if no consent is given. Traditionally, the fault-based divorces have been nick-named "quickie divorces" as they do not rely on a period of separation.
Whilst these last two facts are appealingly neutral, waiting for two years or indeed, five years, may cause practical or financial difficulties for separating couples, and feel achingly long once they have reached the difficult conclusion that the marriage is over. It is little surprise then that many choose to base their petition for divorce on the fact of 'unreasonable behaviour', which doesn't share the same time constraints. It does, however, involve listing examples of behaviour which make it 'intolerable' to live with their spouse.
Naturally, this can be hurtful and divisive. From the outset, it sets an emotional tone which is not conducive to constructive negotiations regarding the family finances or arrangements for children.
The fact that Mr Owens and Mrs Owens found themselves in the Supreme Court at all is evidence of serious pitfalls in the current law. As it stands, one of the married couple can contest or 'defend' the divorce petition. In practice, couples often agree to the wording in a divorce petition before it is filed at court and despite one party taking the notional 'blame', the reality is that the majority of cases are carried out by consent. However, as Owens v Owens exposed, the current law leaves people vulnerable to their spouse abusing the system, defending the divorce as a means of exerting control over their ex-partner, causing delay and potentially significant legal costs.
Individuals wishing to divorce their spouse will still rely on the single ground for divorce - irretrievable breakdown of the marriage. However, they will not need to rely on any of the 'facts' of divorce, listed above.
In addition, couples can opt to apply jointly for divorce, reflecting the reality that the majority of couples agree that their marriage has broken down.
Even where there is a sole applicant, there will no longer be an avenue for the other spouse to defend the divorce.
Perhaps less positively, the new law brings with it different time constraints. Following the new Act's implementation, there will be a mandatory 20-week period between filing the divorce application and obtaining the Conditional Order (the first stage of the divorce previously called the Decree Nisi). After that, the final divorce order (previously called the Decree Absolute) cannot be applied for until at least six weeks from the date of the conditional order. This means that there is a minimum 26-week period (or six months) before a divorce can be finalised. Under the current system, a divorce can occasionally be obtained in three months from start to finish (not so common now with court delays).
The extension has apparently been introduced to 'encourage couples to reflect on their marriage', no doubt, with the hope of possible reconciliation. This part of the Act has been criticised for underestimating the long and difficult deliberations spouses often face before arriving at a decision to divorce.
Is the new system worth waiting for?
Autumn 2021 has been cited by the Lord Chancellor as the approximate date the new law will come into force. Those who had been enthusiastically campaigning for no-fault divorce for years must wait a little longer then, to see the real change it can make to divorcing couples. Without any specific date pinned down yet, autumn 2021 may feel too distant and remote for those who are contemplating divorce now. Whether it is worth the wait will be a matter for each individual or couple. Many couples may decide however to start their divorce proceedings now. The system may be flawed, but it is functional and many couples can and do avoid the pitfalls described above.
For those who are forced to petition based on unreasonable behaviour it is helpful to remember that this element of blame is largely symbolic and won’t affect the outcome of financial or children proceedings in most cases. Generally, the other spouse simply 'denies' the allegations of unreasonable behaviour but allows the divorce to proceed undefended. For those that fear their spouse will try to obstruct the divorce as much as possible (as distinct from sorting out a financial settlement) waiting for the new system may seem worth it to bypass the inevitable stress and potential legal costs their spouse will cause. This approach, of course, has to be weighed against the difficulties of remaining emotionally and financially tied to that person for the foreseeable future.
Concluding that your marriage is over is naturally an emotionally challenging and stressful time, bringing with it a host of complicated practical issues, such as the division of family finances and sorting out child arrangements. The new no-fault based law is an acknowledgement that the process of divorce itself need not add to these challenges. Spouses should be able to take that first step to a new chapter when they are ready to do so, without having to rely on a tired and often artificial system of proving that their marriage has broken down.
The implementation of the new law may seem some way off yet, but we can finally say that divorce law has entered the 21st century - at last.
Our specialist team of family solicitors has extensive experience of helping clients through the divorce process, as well as advising on the financial implications of divorce and child arrangements. If you would like to speak to a member of our family team, please call 020 3826 7550 or complete our web enquiry form.