No fault divorce comes into effect 6 April 2022

Laura Sinclair


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June 28, 2021

Categories Family Law Updates

The Background – Owens v Owens

In 2015 Mrs Owens petitioned for divorce on the ground that her marriage had irretrievably broken down. In order to satisfy the Court of this breakdown, Mrs Owens relied on Mr Owens’ behaviour and said that it was such that she could not reasonably be expected to live with him. Mr Owens defended the divorce and argued that his behaviour had not been unreasonable.

The Judge at first instance said that Mrs Owens had exaggerated the context and seriousness of the allegations and that they ‘were of a kind to be expected in a marriage’. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with and therefore, the marriage could not be said to have irretrievably brown down. Mrs Owens’ petition was dismissed.

Despite appealing to both the Court of Appeal and the Supreme Court, Mrs Owens was unsuccessful in persuading the Judges that Mr Owens’ behaviour was unreasonable enough, and consequently was forced to stay unhappily married until 2020, when she could petition on the only available basis of five years’ separation without Mr Owens’ consent.

The case highlighted how outdated divorce law had become – current provisions having been passed in 1973 when attitudes to marriage and divorce were very different – and how the present requirements for a divorce can serve to increase animosity in already difficult circumstances.

What’s Changed?

Following years of campaigns to remove the need to ‘blame’ one of the parties when seeking to divorce by citing adultery or unreasonable behaviour (or otherwise having to wait a minimum of two years before being able to issue a divorce application), the Government has finally responded to calls to reform divorce law.

From 6th April 2022:-

  • Separating couples will no longer have to rely on one of the ‘five facts’ to prove the ground for divorce. Instead, the new law will simply introduce the requirement to provide a statement of irretrievable breakdown.
  • Joint applications will become possible (although applicants will still be able to submit a sole application if their partner does not agree to the divorce).
  • The ability to contest a divorce, dissolution or separation will be removed.
  • Language will be updated and in plain English, for example, ‘Decree Nisi’ will become a ‘Conditional Order’; ‘Decree Absolute’ will become a ‘Final Order’ and ‘Petitioner’ will become ‘Applicant’.
  • A new minimum period of 20 weeks from the start of proceedings to when the Conditional Order can be made will be introduced, intended to be a period of reflection for both parties to consider whether they truly want to separate.
  • The 6-week period between the Conditional Order and when the Final Order can be made will remain.

What does this mean?

  • Whilst it is still likely to take around 6 months before you can apply for a final divorce order, the proposed changes should simplify current practices and reduce conflict between couples allowing them to focus on issues such as children, property and finances.
  • The new law takes away the need to ‘blame’ one party and will encourage a more constructive approach to separation, promoting reconciliation and reflection where possible but ultimately trusting the judgment of the couple involved.
  • The stress and expense of potentially contested divorce proceedings will be avoided by removing the requirement for consent, admission of adultery or a level of unreasonableness.
  • There will be no minimum period of separation required if, as at present, the parties are seeking to avoid attributing blame.

Should you wait?

If you have already come to the conclusion that your marriage has irretrievably broken down and there are either children or financial issues or both that need to be resolved, then it may still be sensible to proceed with a divorce now, rather than wait until April 2022.

Although relying on your partner’s behaviour or adultery, if applicable, may seem unattractive it will not generally have any effect on the outcome of the divorce, including the financial settlement and arrangements for children.

If you are unsure about the best course of action or would like any assistance with a divorce or separation, please feel free to contact us on 01227 763939.

At Furley Page, we are all members of Resolution meaning we adhere to a Code of Practice which promotes a constructive approach to the resolution of family matters, and in addition we have trained collaborative lawyers who can assist in resolving those issues in an amicable and dignified manner.