Reform of divorce law in England and Wales has long been overdue. So say us lawyers and family law legal practitioners, who have been lobbying and campaigning for an overhaul of the existing system.
Currently, a person wishing to divorce in England and Wales needs to prove that their marriage has broken down irretrievably. The only way to prove this to produce “grounds for divorce” which include making allegations of adultery, unreasonable behaviour, desertion, or a period of separation (2 years with consent or 5 years without consent being needed).
If the other spouse does not agree to a divorce, he or she can refuse to accept the allegations made and contest the divorce. As the recent case of Owens v Owens [2018] UKSC 41 illustrated, failure to apportion sufficient blame for the breakup to the other spouse could result in a refusal by the court to grant a divorce. In the current legal framework, and as poor Mrs Owens found out the hard way, it is just not enough to tell the court that the parties grew apart or no longer felt love for one another.
As family law practitioners we have adapted to the current rules as much as possible. We regularly advise our clients to make factual allegations as mild as possible and to write overly nice letters to their former spouses almost apologising and making it clear that the allegations are unavoidable. And we advise them to hope that their former spouse will cooperate and not cause too much trouble.
Now, however, we have the promise of reform in the Divorce, Dissolution and Separation Act 2020, which has recently received Royal Assent and which is due to be implemented in April 2022. Gone will be the need to apportion blame and gone will be the ability of the other spouse to contest the divorce. We are moving into an era of no-fault divorce, and it is most welcome indeed.
When the Act is implemented in April 2022, the applying party (no longer called the Petitioner) will simply need say that the marriage has broken down irretrievably. The court will then take this as conclusive evidence of a breakdown of the marriage and make an order for divorce. There will be no ability to contest the divorce by the responding party. The parties will also be able to make a joint application for divorce if they wish.
The Ministry of Justice is currently working on the necessary updates to the court rules and procedures, as well as the written and online materials which will be used by the public and the legal profession following the implementation of the Act.
