Anticipation And Separation: Divorcing On The Eve Of ‘No-Fault’ Reforms 

Published on 03 November, 2022 | Madelaine Hailey

In April this year, the most substantial reform of divorce law in half a century took effect.

Of all the provisions contained in the Divorce, Dissolution and Separation Act 2020 (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) , one attracted the lion’s share of attention.

The introduction of ‘no-fault’ divorce was heralded as enabling spouses in failed or failing marriages to go their separate ways without needing to point the finger.

Media, politicians and family lawyers alike agreed that apportioning blame may have accelerated the process of securing a divorce but also created unnecessary tensions.

They were unnecessary because, in my experience, many marriages don’t break down as a result of one party behaving badly. A sizeable proportion of spouses simply come to the realisation that their relationships aren’t working and wish to move on with their lives.

Nevertheless, the friction caused by alleging someone might have behaved badly can cause difficulties between husbands and wives during subsequent discussions about how best to divide marital assets or make arrangements for their children.

The frequency with which such problems can occur is made clear in the latest divorce statistics published by the Office for National Statistics (ONS) (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021#duration-of-marriage).

During 2021, just over 48 per cent of wives and 34 per cent of husbands ended their marriages because of their spouse’s unreasonable behaviour.

Under the new law, they are entitled to file for divorce – individually or jointly – if their marriages have “irretrievably” broken down.

I should point out that the absence of alleging fault when submitting the petition which begins the divorce process does not make things entirely friction-free.

In fact, most disputes which occur in divorce do so when it comes to negotiating about asset division and the well-being of children.

Even so, removing any hurdle in the way of an amicable divorce is to be welcomed.

The alternative is not just acrimony but the kind of experience endured by Tini Owens, who

became a cause célèbre for those wanting ‘no-fault’ divorce.

Mrs Owens argued that she should be allowed to end her 40-year marriage on the basis that it was “loveless”, a move objected to by her husband, Hugh.

Even the Supreme Court justices who denied her admitted that the case was “very troubling” and only added fuel to demands for a change in the law (https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).

Their decision meant that Mrs Owens faced a wait of at least five years before being able to file for divorce without requiring her husband’s agreement.

Interestingly, the new ONS data shows that nearly 20,000 men and women (17.8 per cent of all divorces last year) either preferred or were made to wait that length of time before leaving their marriages.

One other fascinating aspect of the latest figures is the continued impact of lockdown on marital breakdown.

Overall, the number of divorces in 2021 was 9.6 per cent higher than the previous year when, of course, the workload of the family courts was limited by efforts to curb the spread of coronavirus.

Faced with the prospect of substantial delays, many people chose to postpone their plans to break-up.

Being obliged to remain under the same roof as their soon-to-be ex also made a divorce petition rather more impracticable than it would have been under normal circumstances.

Although the increase in actual divorces is notable, I believe that it might have been even higher but for imminent arrival of ‘no-fault’ divorce.

Individuals who concluded towards the end of 2021 that their marriages had no future understood that waiting just a few months until the new law came into force might allow them to part without rancour.

We must now wait until the next tranche of ONS statistics to gain some idea as to exactly how many people adopted that position.