No blame game

‘No-fault divorce’ or The Divorce, Dissolution and Separation Act 2020 to give it its full title, brings major change from 6 April 2022. 

It has been quite a journey for UK divorce.  We are now used to a divorce meaning court but, until 1858, divorce could only be granted by an act of parliament, making it very much for the rich and determined!  The Matrimonial Causes Act 1857 moved divorce to the courts, but only for adultery and mainly available to men!  The subsequent MCA of 1923 made divorce more accessible for women too, and additional grounds of cruelty and desertion were included. 

I was surprised to learn that ‘no-fault’ has been under consideration since the 1960s/70s.  Those initial consultations were ironically led by the church, recognising that blame wasn’t helping.  So, periods of separation (as well as the blame grounds) were introduced in The Matrimonial Causes Act 1973.   There was a push to move this on further in the 90s, with the Family Law Act 1996.  While the domestic abuse aspects of the bill would become (important) law, the planned divorce reform did not.  I think this will surprise any non-lawyers, our divorce law remains from the 1973 Act; you have to prove the marriage has irretrievably broken down, supported by one of 5 facts (adultery, behaviour, separation 2years with consent/5years otherwise or desertion).

In her book Spider Woman – A Life, Lady Hale speaks about her part in this journey of reform, and the role of the press in hindering or helping.  The 1996 attempt was criticised as liberal, permissive and sabotaging marriage.    Press was divided with the 2020 Act too.  Reaction from Daily Mail et al. is still “Divorce on Demand” – concerns that it’s too easy to bring a marriage to an end.    i-News raises a more interesting debate as to whether it is important for a wronged party to be able to say so, e.g. when the other commits adultery. 

Anyone who has experienced divorce knows it is never easy, but the new divorce law promises to be simpler, more balanced and kinder.  Parliament said this reform was to “…stop divorcing couples having to make unnecessary allegations against one another and instead help them focus on separating amicably.”  What this means in summary is:

· no requirement to prove, only the statement of irretrievable breakdown;

· the decision to divorce cannot be defended, recognising that if one spouse makes the above statement, the marriage has come to an end regardless of how the other feels – marriage is a partnership;

· divorce can now be made on joint application;

· new minimum overall timeframe of six months, to ensure time for reflection but not prolong unnecessarily where inevitable.  The time period is to be used to agree practical arrangements for the future, e.g. their children, finances.

· updating the old-fashioned legal language

The no-fault/ability for joint application seems to have made the most impact.  There is little appetite for a divorce that cites half a dozen allegations of how one spouse has wronged the other.  Many people relate to Paul Young’s wise words, “It was easy to be angry at you but, deep inside, I know we share the blame.”

Interesting that, despite the modernisation, divorce is still to be managed through the courts; it’s a contractual process to marry but legal intervention remains required for divorce.  The new law sits very well alongside mediation and the continued growth of DR (dispute resolution) – finding solutions outside of court and litigation.  Will divorce itself ultimately leave the court arena? Probably not for a while, judging by the history so far!  Matrimonial Causes Act 2073 anyone???

If you have questions about how the new law might impact you, or you want to ensure your separation is resolved amicably away from court, please do get in touch.