Bridge McFarlandLLP

Personal
Legal Services
More Information
Bridge McFarland LLP can offer you practical, uncomplicated advice, support & guidance when you need it most. Whether it be an employment dispute, family advice, an accident or negligence, life planning or moving house, let us help you.
Business
Legal Services
More Information
Our commercial team in Lincoln, Hull, Market Rasen and Grimsby prides itself on its sound business sense, commercial insight, local knowledge and first class understanding of the relevant legal disciplines ranging from employment law, business contracts, dispute resolution to agriculture and property development. From company formation to sale, succession, dissolution or dispute resolution, you can trust our team to deliver first class service and results.
Photograph of Chris Gresswell-Green
Chris Gresswell-Green
Senior Solicitor
View Profile
Photograph of Janet Wilson
Janet Wilson
Senior Conveyancing Executive
View Profile
Photograph of Rob Ripley
Rob Ripley
Partner
View Profile
Photograph of Lee Whiting
Lee Whiting
Partner
View Profile
Photograph of Lisa Moore
Lisa Moore
Partner
View Profile
Photograph of Ian Sprakes
Ian Sprakes
Partner
View Profile
Photograph of Leanne Keating
Leanne Keating
Partner
View Profile
Photograph of Rob Ripley
Rob Ripley
Partner
View Profile
Photograph of Mike Wilson
Mike Wilson
Partner
View Profile
Photograph of Chris Hubbard
Chris Hubbard
Partner
View Profile
Photograph of Jacqui Johnson
Jacqui Johnson
Partner
View Profile
Home » Latest News » No-Fault Divorce in England and Wales

No-Fault Divorce in England and Wales

No-Fault Divorce in England and Wales

As recently as October 2015, there was a motion put forward by an MP in the House of Commons to have a no-fault based divorce system in England and Wales, but this has not been progressed.

The sole ground for divorce in England and Wales is that the marriage must have ‘irretrievably broken down’; proven by one of five facts being either adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation, a requirement which has remained the same since the implementation of the Matrimonial Causes Act 1973.

Until 1857 divorce was a matter for the Ecclesiastical Courts. This was changed by the Matrimonial Causes Act 1857 which meant that a Husband and Wife could divorce through the Law Courts. At this time, the law was still steeped in religious bias. Divorce was a difficult process which was surrounded by stigma. As well as this, the Courts provided an easier divorce process for the Husband then it did for the Wife wishing to commence divorce proceedings.

The Matrimonial Causes Act 1932 equalised the position of the Husband and Wife in terms of getting a divorce, however the process was still peppered with stigma which was by no means alleviated by the Matrimonial Causes Act 1937. This Act served to allow cruelty, desertion or insanity to be used as a ground for divorce.

The 1960’s marked the beginning of the growing social acceptance of divorce. The Divorce Reform Act 1969 abolished all of the old grounds for divorce and replaced them with a single ground for divorce - that the marriage has irretrievably broken down. The law was consolidated in the Matrimonial Causes Act 1973.

The debate has moved on since the 1970’s but the law is still the same some 46 years later. Only two of the possible five factors in the Matrimonial Causes Act 1973 allow for a divorce to proceed without one of the party’s having to cite reasons for the breakdown of the marriage, but the parties must wait a minimum of two years to be able to rely on one of these factors and the other parties consent is required to proceed. Should the other party not offer their consent for the divorce to proceed, the only other fact available to use without having to cite reasons for the breakdown of the marriage is to wait for five years after the date of separation.

Upon consideration of the length of time a couple has to wait to divorce without any allegations of fault being raised, it is not surprising that the most common factor used to proceed with a divorce is ‘unreasonable behaviour’. In order to proceed on the basis of behaviour, the Petitioner must give brief details to the Court to support the fact that ‘the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.’ After any length of marriage, the party on the receiving end of the divorce petition is likely to be negatively affected by any of the reasons that have been listed by their former spouse to prove such a fact to the Court. It does however remain the most popular ground for divorce within England and Wales.

Therefore, we are left in a position whereby parties have to remain in their marriage for at least two years following the date of their separation, or, one of the parties must take the blame for the irretrievable break down of the marriage in order for a divorce to be obtained.

As recently as October 2015, there was a motion put forward by an MP in the House of Commons to have a no-fault based divorce system in England and Wales, but this has not been progressed.

The provision of a no-fault based divorce system has been in the subconscious of our legal system for the past 23 years, having been included in Part 2 of the Family Law Act 1996. Part 2 of the Act would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. This part of the Act was promptly repealed by the new Labour government who deemed anything that would make obtaining a divorce easier, unsuitable for government ratification.

It has been argued that the introduction of a faultless divorce would eradicate the basis of our justice system in England and Wales. It has been said that fault needs to be apportioned to the so called ‘wrong doer’ so that the ‘victim’ can feel appeased by the legal process. Despite the changes to the legislation throughout the 20th century, divorce law does very little to assist a person who is unhappy within a marriage but cannot adequately prove that their spouses behaviour has been unreasonable. Recent case law suggests that the legislation does even less to assist an unhappy spouse who wants a divorce when the other party does not.

A divorce is not treated as defended unless an answer is filed by the Respondent spouse. The unfairness inherent in the current legislation was poignantly highlighted by the President of the Family Court in Owens v Owens (2016) when he remarked that he could not help but think that had the petition not been defended then it would have been accepted by court. In this case, the Central Family Court refused to grant Mrs Owens (the petitioner) a decree nisi of divorce, even though it found that the marriage had broken down. The judge found that Mrs Owens had failed to prove, within the meaning of the law, that her husband had behaved in such a way that she could not reasonably be expected to live with him.

Both the Court of Appeal in 2017, and the Supreme Court in 2018, dismissed Mrs Owen’s appeal. Judges in both courts said that it was for Parliament and not judges to change the law. Lady Justice Hale has been an advocate for a faultless divorce system for quite some time. Being one of the Judges involved in the Owens case when it reached the Supreme Court she commented:

“I have 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. This was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage.”

Lady Hale’s comments perfectly illustrate the dilemma which faces divorce lawyers across England and Wales. The fact of the matter is that even if a spouse does not want to allege fault of the other in order to bring the marriage to an end, they would be encouraged to do so in order to obtain a quicker divorce. It may be the case that a couple that are on speaking terms will agree on the facts used for the divorce and will agree on the allegations of fault to be listed in the petition.

This indicates a difference between the legislative provisions and the practical application of the law within everyday practice. The Judiciary seem to accept this and that a change is needed to the legislation. It however remains a matter for our politicians to retract the archaic reasoning behind fault based divorce and to create a facility of understanding and mitigation of the natural hostility inherent within divorce. Recognition has to be given that conflict cannot be removed entirely from the divorce process, but the law shouldn’t exacerbate hostility and a faultless divorce should be available.