No-Fault Divorce – An Alternative View

Mathew Aves - Family Lawyer

Matthew Aves – Family Law Partner

We are now four weeks into the much-vaunted vanity project that is the new Divorce Dissolution and Separation Act 2020.  The champagne is barely flat at the headquarters of Resolution (the artist formerly known as The Solicitors Family Law Association) and yet the anticipated tide of clients looking for a touchy-feely fault free divorce has yet to materialise.

I say vanity project because the new divorce legislation is very much the work and project of a number of individuals within the profession who think of themselves as being lawmakers rather than law followers and who have campaigned for in excess of a decade (at some significant cost to the profession) for this new law. 

The old legislation dated back to 1973.  It provided that there was one ground for divorce which was that the marriage had broken down irretrievably.  The person bringing the divorce (the Petitioner) had to demonstrate that the marriage had broken down for one (or more) of five specified reasons.  Those reasons were:

(a)        Desertion (which nobody ever did);

(b)        Five years separation without consent;

(c)        Two years separation with consent;

(d)        Behaviour (otherwise known as unreasonable behaviour);

(e)        Adultery

The campaigning which led to the new law was based almost entirely on the premise that fault-based divorce (e.g. adultery or behaviour) almost necessarily translated into a divorce which was more acrimonious than it might otherwise be.  As such, any proceedings in relation to the financial assets of the parties or indeed in respect of the children would be more drawn out and unpleasant than it would otherwise have been if no fault had been alleged in the divorce.

This premise seemed to be unsupported by fact-based research.  At best it was anecdotal.  It ignored the fact that in probably 90% of cases there are no real arguments in relation to children and the court operates its no order and non-intervention policy.  (This change in approach came around following on from the implementation of the Children Act in October 1991 and it is fair to say that this encouraged change of ethos has worked spectacularly well.)  It also failed to take into account that a significant proportion of behaviour and adultery cases were effectively consensual and that two year petitions had to be consensual by definition.  The number of behaviour petitions which were defended each year to the extent that the judge had to make a decision as to whether the behaviour complained of was such that the petitioning party could not reasonably be expected to live with their spouse could probably be counted on the fingers of one hand.  When these cases were disputed it was usually because there was some sub-text so, for instance, one party felt that if they issued divorce proceedings in another jurisdiction they would fare better financially.

There is no doubt that the existing divorce legislation needed revisiting.  A lot of individuals were forced into issuing divorce proceedings at an earlier stage than they might otherwise do simply because they wanted to achieve something that could only be achieved within the context of divorce proceedings.  A financial application can only be made ancillary to dissolution proceedings and thus if an individual wanted to force a financial disclosure, wanted to force a financial settlement or indeed wanted to have a financial settlement that had been agreed between the parties, either directly through solicitors or within mediation, ratified by the court and thus binding, that settlement had to be submitted to the court for approval within divorce proceedings.  We thus saw a lot of weak behaviour petitions being issued where a marriage had simply run its course because there was no other immediate fact that divorce proceedings could be founded on. 

The most logical route would have been to remove the need for two years separation with a consensual petition.  This fact could simply have been replaced with “the parties mutually consent to a divorce”.

The new legislation has passed through Parliament at a time of significant activity and diversion.  Initially, during its first readings, Parliament was preoccupied with Brexit and all that went with that.  Subsequently, there has been the pandemic and the very substantial sideshows that have followed.  Indeed, it could be said that a number of the stakeholders who might otherwise have been involved in the discussion (e.g. the Church) have to a degree been excluded from the discussion process and that there has been insufficient public scrutiny of the proposed changes.

The legislation is itself in places poorly drafted.  For instance, it allows the presentation of a joint petition for divorce by one solicitor acting for both parties.  This flies in the face of hundreds of years of process and the fundamental enshrinement in English law of the principle of independent representation.  Indeed, as at the date of writing the Law Society has been unable to come up with a set of rules and guidance which would allow a solicitor to act for both parties in divorce proceedings perhaps simply because it is impossible to do so.

Resolution played a significant role in sponsoring the case of Mr and Mrs Owens, a case which was eventually decided by the Supreme Court in July 2018.  It was reported in the press that Mrs Owens was “trapped in a loveless marriage”.  The reality was very far from that.  In truth, it could be said that Mrs Owens was actually a victim of her solicitor’s inability to draft a behaviour petition which complied with the existing court rules. The (general) guidance given by Resolution to its members was that divorce petitions should be kept as mild as possible. (Remember fault free is best). 40 years of case law and statutory interpretation made it clear that the behaviour alleged on the part of the respondent should be such that from both a subjective and objective viewpoint it should be held that the petitioning party could not reasonably be expected to continue living with them.  Both causation and effect needed to be shown.  The behaviour had to have caused distress and unhappiness on the part of the party bringing the divorce proceedings.

Mrs Owens’ Petition did not do that.

The case was however picked up by Resolution who were ultimately granted permission by Lady Hale to lodge a statement to explain what it believed the law was.  Resolution argued (unsuccessfully) that the lower courts had misinterpreted the test in the past and therefore that the Supreme Court could interpret the statute in line with current times.  The Supreme Court disagreed but the door was open for consideration of a new law.

Some commentators believe that the Government welcomed the opportunity to make divorce cheaper for the state, so maybe the door was half open anyway. 

The new statute allows one party to issue a divorce application and indeed obtain a divorce without any notice or consent on the part of the other party.  It is therefore far more than a permission to obtain a fault free divorce.  As I have said above, it is based entirely on the premise that a fault free divorce is “better” than a fault divorce despite the lack of any proper empirical evidence to that effect.

I feel that Resolution has long adopted a questionable attitude of applying general objective tests and conclusions to relationship breakdown.  It makes recommendations to its members concerning the way that divorce should be dealt with which encourage very little subjective consideration, particularly amongst those junior in the area who may lack the insight and understanding of their seniors.

This apparently entirely misses the point that the way that a divorce and associated proceedings pans out is almost entirely down to the personalities involved.  By personalities I mean the parties, their lawyers and Judges.  There are very few generalities in divorce. It is not a fine science.  Cases involving multi-million-pound assets are regularly settled with a minimum of involvement on the part of lawyers.  Equally, cases involving small assets which will barely (if at all) meet the parties’ needs when divided are fought tooth and nail with ultimately the only beneficiaries being the lawyers.  In some cases of course, even the lawyers take a hit because the individuals involved in these cases of attrition very often turn on their lawyers at the conclusion when looking for fault, refuse to pay their bills and/or involve them in extended and unfounded complaints to the regulatory bodies. None of this happens because of fault-based proceedings. It is the personalities that drive the process not the law itself.

Divorce almost inevitably exposes all the frailties and faults in the human character.  To suggest that introducing a fault-free system will necessarily lead to less acrimony in a relationship breakdown is akin to suggesting that a criminal court can, by punishing a criminal, make that individual an honest upstanding citizen rather than fundamentally dishonest.  Is a narcissistic, controlling person going to be rehabilitated by a fault-free divorce application? Of course not. They will be just as difficult in relation to finances as they would have been with a behaviour petition.

If a case is going to fight it will fight.  The fact that the divorce itself has been based on no-fault would in all likelihood have no bearing on the approach of the parties.  Indeed, it may be detrimental.  Is the recipient party going to be any less offended by receiving a divorce application by email out of the blue than they would have been receiving a behaviour petition or adultery petition under the old process?

None of this of course affects the general principle that lawyers should do their best not to encourage acrimony. That should be a given.

The new law allows for no defence to the divorce application.  Under the old law, you could defend the petition and although very few petitions were defended to the ultimate there was perhaps some deterrent effect to those that wanted to issue divorce proceedings on a whim.  All that is needed now in order to instigate a divorce is around £600 and access to the Internet.

It could be said that making divorce so easy potentially undermines the sanctity of marriage generally. Some studies suggest that making divorce more accessible significantly increases divorce rates and leads to a feeling that marriage is more disposable. These are fundamental societal considerations. Also ignored are the potential benefits of the fault-based system.  There was perhaps something psychologically cathartic about an individual prosecuting a behaviour based divorce having suffered years of abuse at the hands of their spouse.  There was some sort of vindication in that.  A taking back of control having narrated the hardship that had been suffered.  That is now gone and there has been little or no research into the potentially detrimental effects of a no-fault system.  We are simply left with the mantra that “no-fault is best”.

Evidence suggests that since the court adopted the digital divorce process and thus made the issuing of divorce proceedings easier for the average punter (because they did not feel that they had to instruct a solicitor) the number of petitions issued and then abandoned increased significantly.  Are we going to see more of the same?  Divorce petitions issued as a kneejerk reaction causing angst but then not progressed.  It is just as easy to issue divorce proceedings now in a drunken haze as it is to buy an unneeded car on eBay (and probably cheaper).

Will it be any quicker?  The simple answer is no.  The old system had by March 2022 reach a state of sophistication whereby we were seeing clients, issuing divorce proceedings and getting to the stage of their decree absolute within 5 months.  The new process will result in a period of at least 26 weeks between issue and final order which, in a lot of ways, means that we have come full circle because 20 years ago we were telling clients that it took around 6 months to get divorced.

Personally, I cannot see any particular benefit to the new legislation which could not have been achieved by a simple amendment to the existing law as suggested above.    It is perhaps telling that within a few days of the introduction of the new law Private Eye, that bastion of satire, published a spoof article which, in a few short paragraphs, espouses all the faults and lack of evidence based thought that has gone into where we are now.  If anything, this new law epitomises just how unsophisticated the profession can be in its thinking concerning the emotional and psychological aspects of relationship breakdown with this blunt “one size fits all” approach.

The sad thing is that there is plenty wrong with our family courts and law that does genuinely need sorting now for the good of all involved. The effort spent achieving this law change could have been better directed to more campaigning for a family law justice system that actually works. One where there is continuity of decision making by Judges, where the court system is accessible without spending literal hours on the telephone, where 30% of cases are not cancelled the day before, where you can get a hearing in less than a year, where courts are not housed in hotels and there is some penalty for non-compliance rather than a 6-month wait for an enforcement hearing that is then cancelled the day before.

Are we all better off for the new law? I am yet to be convinced.

The views and opinions stated in this article are those of the author

For further information on any aspect of relationship breakdown or divorce, please contact the family law team on  01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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