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  • Writer's pictureDurham Pro Bono Blog

No-fault Divorce: Blame Game Is Over

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Julia Ju




How do you obtain a divorce under the current law?

To start a divorce procedure, the marriage must have ‘broken down irretrievably’[1], which requires one of five possible facts to be proven. Three of these facts are fault-based: adultery, unreasonable behaviour or desertion[2], whilst the remaining two are based upon separation: at least two years’ separation with the consent of both parties or 5 years’ separation if one party opposes the divorce proceedings[3]. This law has consequently been condemned for being outdated and creating a divorce ‘blame game’ culture. It is for this reason that a new divorce bill has been proposed - under this new law, couples will only have to state that their marriage is ‘irretrievably broken’ to start their divorce process.


Owens v Owens

Another reason for this change in divorce law stems from the case Owens v Owens[4]. Mrs. Owens, who wanted to divorce her husband of 40 years, argued that her marriage was irretrievably broken under Matrimonial Causes Act 1973, s.1(2)(b). She argued that her husband was being ‘moody and argumentative’ and that he belittled her in front of others. However, the Supreme Court rejected her appeal on the grounds that her descriptions of the husband’s behaviour were too flimsy and exaggerated to satisfy s.1(2)(b). Although this was the case, it was noted that the judges had ruled against Mrs. Owens with reluctance. Judges reasoned that society’s view on whether it was reasonable for a spouse to live with the other considering the ‘unreasonable behaviour of one party and its effect on the other have changed’[5]. Therefore, the Court suggested possible reform of the divorce law to Parliament[6].


No-fault divorce: What is it?

Already approved by the House of Commons and set to become a new law from Autumn 2021, the ‘Divorce, Dissolution and Separation Bill’ introduces no-fault divorce cases where establishing one or more fault-based facts to prove irretrievable breakdown is no longer required. In other words, blaming the other party is not needed. Furthermore, it includes joint applications where the couple can both file for a divorce. For single parties, it removes the ability for the other party to contest a divorce, dissolution or separation. All in all, it makes the divorce process much more easy-going for both the parties and judges.


Should we make divorce easier?

In countries where no-fault divorce has already been implemented, it is believed to have increased the number of divorce cases drastically. In the US, for example, it has led to a six-fold increase in divorce in just two years and is said to be responsible for over 80% of divorces[7]. As a result, many argue that no-fault divorce has given rise to ‘a culture of low commitment marriage’[8] and hence a possible cause of people’s distrust and fear of committing to the marriage institution. In contrast, the rate of domestic violence and female suicide has rapidly decreased in US states after no-fault divorce[9]. Moreover, no-fault divorce law initiates reduced feelings of resentment and it enables parties to separate and deal with their finances in a more amicable manner. The benefit of less conflict between parents also sees less emotional trauma for children.


So, the question remains: is no-fault divorce necessary and do we really need it? Evidently, there are controversial views on the proposed Bill and its implications. Overall, however, it introduces a Bill that reflects current social views on divorce and ultimately gets rid of the unnecessary ‘blame game’.



 

Sources

[1] Matrimonial Causes Act 1973, s. 1(1). [2] ibid., s.1(2)(a), (b), (c). [3] ibid., s.1(2)(d), (e). [4] [2018] UKSC 41 [5] Owens v Owens [2018] UKSC 41 [50], [54] (Lady Hale) [6] ibid., [45] (Lord Wilson) [7] Divorce Statistics Writers, ‘No-Fault Divorce Statistics and More’ (Divorce Statistics) <https://www.divorcestatistics.info/no-fault-divorce-statistics-and-more.html#more-235> accessed 23 November 2020. [8] Jen, ‘What’s so bad about divorce?’ (Them Before Us, 15 May 2017) <https://thembeforeus.com/whats-so-bad-about-divorce/> accessed 23 November 2020. [9] Betsey Stevenson, “Divorce Reform Hits New York” (Freakonomics, 16 June 2010) <https://freakonomics.com//2010/06/16/divorce-reform-hits-new-york/> accessed 23 November 2020.

Bibliography

Divorce Statistics Writers, ‘No-Fault Divorce Statistics and More’ (Divorce Statistics) <https://www.divorcestatistics.info/no-fault-divorce-statistics-and-more.html#more-235> accessed 23 November 2020.

Jen, ‘What’s so bad about divorce?’ (Them Before Us, 15 May 2017) <https://thembeforeus.com/whats-so-bad-about-divorce/> accessed 23 November 2020.

Matrimonial Causes Act 1973

Owens v Owens [2018] UKSC 41

Stevenson B., “Divorce Reform Hits New York” (Freakonomics, 16 June 2010) <https://freakonomics.com//2010/06/16/divorce-reform-hits-new-york/> accessed 23 November 2020.

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