Finally after decades of prevaricating, the ‘blame game’ of divorce under the Matrimonial Causes Act 1973 is being swept from the board and after 6th April 2022, divorce in England and Wales will be ‘no fault’. There are many reasons why after decades of trying, Parliament has changed the way the divorce process is administered.
In fact, the ground for divorce remains exactly as it has been – the irretrievable breakdown of the marriage. That is the correct criteria for allowing people to formally end their marriage and survives the reforms.
Until April, the way that a person proved that the marriage had irretrievably broken down was by putting their situation into one of 5 pigeonholes – the 5 divorce ‘Facts’ from (a) to (e).
They were not equally popular, they were all on-stage, but some were less useful than others.
The star of the show was Unreasonable Behaviour.
At (b) was unreasonable behaviour – behaviour that the spouse seeking divorce found intolerable. It was useful because it did not require sexual activity with a third party like adultery, nor years of separation. It saved 2 years waiting, so was often used, even when people were relatively amicable.
The interpretation of what was unacceptable behaviour in a marriage has become less patriarchal and oppressive, so what a wife might be expected to find tolerable in 1973 – scratching her Demis Roussos LP when ripping it from the stereogram or aggression for being late to the table with the Fray Bentos curry has rather disappeared from societal norms (albeit wrong ones) against which a spouse’s assertions of intolerability might be considered if they were in what became a very rare event, a contested case.
The importance of what the spouses considered ‘normal’ or acceptable behaviour matters when it comes to whether they really find certain behaviour intolerable. I would often cite playing golf of a Saturday morning – a couple who were club captains at the local course would hardly be likely to find their spouse playing golf intolerable, whereas a spouse lumbered with the weekly supermarket shop with no help, a tribe of children and the smaller car might well find the strategic absence of their spouse genuinely objectionable.
What the person found acceptable was important in establishing whether that fact (unreasonable behaviour) had been proved. Lately the degree to which a spouse engages in social media in bed or controls which Netflix series is binged has overtaken more obviously boorish behaviour, but the test is the same – has that person convinced the judge that they find the behaviour so intolerable that they should not be expected to remain married.
What went wrong?
One such contested case was Owens v Owens and led to the outcry about making people prove the breakdown only by pigeonholing their situation into one of the 5 facts. Mr and Mrs Owens had clearly got their marriage into a bad way. Mrs Owens sought divorce on fairly normal arguable ‘standard’ allegations including that her husband was disparaging and they had a poor relationship somewhat free of love and affection. The allegations were not inherently offensive and set out in Particulars, as was normal.
One would have expected the husband to follow judicial urging and simply accept the marriage was over, even if he did not accept that the Particulars of Unreasonable Behaviour were true. As the marriage having irretrievably broken down is the ground for divorce, in reality it mattered little whether the couple agreed the cause.
Mr Owens took the view that the marriage had hit a rough patch, but that the breakdown was not irretrievable and that the Particulars did not prove the breakdown was final. Despite it being actively discouraged, he contested the divorce – there was a law and the criteria for divorce were not, in his opinion, satisfied. Having heard evidence that the couple’s marriage was not at all out of character with those marriages of their friends, who found rudeness and general disinterest in the feelings of their spouse par for the course, the judge found that the test for irretrievable breakdown through intolerability had not been met and refused the Certificate of Entitlement to a decree of divorce.
When that happened, us family lawyers looking at the quoted Particulars which in many variations existed in their files, were somewhat concerned. The judge held that a poor marriage was so accepted by the wife and her contemporaries, that ‘normal’ low-key Particulars might not show enough of the breakdown to prove it was irretrievable. Our advice, based on what we had been told by the judiciary, looked questionable, albeit pragmatic. Mrs Owens had perhaps not been sufficiently adamant, but it was not accepted that she had proved her case on Particulars which were frequently used in some form or other.
The case went from court to court and because nobody could find fault with the legal reasoning of the judge based on evidence in court, the higher courts found that no matter how ludicrous the consequences, Mr Owens was entitled to defend and the wife had failed to prove that she should not be expected to continue in the marriage or at least the state of marriage.
Finally, the ludicrous state of the law, which practitioners and judges had worked together to adapt to modern circumstances was laid bare. From the inception of the Solicitors’ Family Law Association, now Resolution, solicitors had been working together to get around the requirement of fault without increasing the acrimony that was often caused. Unreasonable Behaviour was one of the processes which did not require long separation and so was used (along with adultery) for ‘quickie’ divorces, with the quickness merely being the avoidance of 2 years of waiting before the process could commence, at least in the case of behaviour. Adultery Particulars rarely alleged the Respondent had ‘a quickie’, even if using that fact reduced the waiting time for divorce.
The judges explained that only Parliament could change the law to prevent similar unintended consequences in future and the considerable wasting of court time hearing just how impolite, crass or sarcastic comparable spouses would find tolerable in determining how likely it was that a spouse found their own spouse’s behaviour unacceptable and thus intolerable.
Along came Parliament and enacted the Divorce Dissolution and Separation Act 2020.
What has changed?
There is now one way to prove irretrievable breakdown of the marriage – the filing of a statement asserting that to be the case.
However, it is now a requirement for people to wait a period of 20 weeks from that statement before they can ask for a Conditional Order (modern word for ‘decree nisi’) and then there is the standard 6 week wait before the CO/DN can be made Final (Absolute). The consequences are the same as before so it is usually wise to resolve the finances before ending the legal state of marriage, so there is ample time to attempt that, even if pensions issues may still delay finality.
It is also permitted for both spouse to apply jointly, although as one may change their mind in the 6 months that is required, that looks likely to cause difficulties, so it may be that even when both are in complete agreement, one of them files and not both.
Defending the Divorce
This is now only possible for certain jurisdictional problems or procedural errors. No defence based on the breakdown will be permitted. The notice is regarded as the required proof.
The Beginning of the End?
During its passage through the legislature, the thought of ‘on demand’ divorce was discussed and so the long 20 week ‘cooling off’ period was brought in to engage those against divorce – albeit in fairness to them usually with some lines of behaviour that should entitle people to separate. In my opinion and that of many involve in relationship breakdown, the delay does little to achieve the stated aim to allow reflection on the nature of the breakdown, but the new system will, the bean-counters hope, reduce the involvement of expensive judges in an otherwise administrative process. It would be little surprise if the government argue that it frees up judicial time to such extent that they can reduce the number of sitting hours in the budgets, despite the lamentable situation that presently cases are often cancelled at the last minute because there are too few judges to hear the lists as it is. Our Governments rarely let evidence get in the way of budget-trimming excuses when it comes to the legal system.
Was this compromise worth the wait of decades since ‘no-fault’ was recommended? We shall find out, but Parliament giving the courts a long period without new cases to process may not help the staff and the district judges being overburdened as much as they hope. The courts are obliged to say how many weeks they are behind with their work and that is sometimes measured in months. The idea of the mills of justice grinding exceeding slow may be long-established but it should not be inevitable. There is an irony that those working in the legal system are chased by email about processes that reflect the pace of a somnolent sloth on a day it is demotivated.
In the 1800s, a chap named John Godfrey Saxe opined that laws are like sausages, if you like them, you do not necessarily want to know what went into them. Others have adapted that expression and it was a recurring theme of the documentary series ‘Yes Minister’. Will the evidential reform that is ‘no fault’ divorce be a ‘Great British Banger’ or prove to be something of an ‘emulsified high-fat offal tube’?
We haven’t yet reached the end of the beginning, but at least the likes of Mr and Mrs Owens will no longer be required to berate each other in public. However, after over 30 years in family law, I am pretty confident that disgruntled spouses will find other forums to express their frustrations. Perhaps throwing a meaningful amount of funding into relationship counselling might help, but with politicians rarely concerned about the long-term, that doesn’t translate into budget cuts now.
Shame on whoever promoted the slogan ‘where there’s blame there’s a claim’ for creating false expectations – it will take more than a 20 week wait to take fault out of the public consciousness when it comes to divorce. Many people remain surprised that the general bad character of their former loved-one gets no enhancement to the financial package on divorce.
Even so – at least the ground for ending the legal state of marriage by showing ‘irretrievable breakdown’ has become clearer and further refinement of proving that can be contemplated.
Will that help?
Yes Minister.
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