No one’s fault

Fault-based divorce law has long been felt to aggravate family conflict and the significant publicity generated by Owens v Owens has forced the government to consider the issue again. A look at the proposed reforms


The law relating to divorce in England and Wales has remained unchanged for almost half a century. This is surprising, given how much society has changed over that time.

In England and Wales, as the law presently stands, a spouse can petition for divorce after a year and a day of marriage under s 3(1) of the Matrimonial Causes Act 1973 (MCA 1973). A court cannot pronounce a decree of divorce unless it is satisfied, ie finds that ‘the marriage has broken down irretrievably’ (MCA 1973, s 1(1)). The court cannot make such a finding unless the petitioner establishes one or more of the five available facts.

The first two facts, and arguably the third, relate to the conduct of the respondent, and are therefore often described as ‘fault’-based facts (see box). The 1973 Act has a number of supplemental provisions; these dictate the admissibility of evidence relating to the facts. For example, a petitioner cannot rely on the adultery fact if they have lived with the respondent for more than six months after they first became aware of the adultery.

Facts (d) and (e) require the parties to have been separated for an appreciable period of time, so it is perhaps no surprise that the majority of petitions rely upon one of the fault-based facts. Indeed, statistics demonstrate that behaviour fact (b) was relied upon in almost half of all petitions.

On receipt of a divorce petition, the court has a statutory duty to ‘inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent’ (MCA 1973, s 1(3)). In most undefended cases, this does not happen beyond a brief read of the petition.

The vast majority of cases now proceed by what is known as the ‘special procedure’, which sees all uncontested divorces determined without the need for the attendance of either party. In practical terms this has resulted in almost all divorces being ‘determined’ on paper by legal advisers under the supervision of a district judge, who ultimately grants a certificate of entitlement to decree nisi. A further two separate applications to the court are required before the parties are finally legally divorced.

The impact of Owens v Owens

Whilst the procedural rules allow for a trial of a contested divorce, it is estimated that less than 0.015% of respondents carry their opposition through to a contested hearing: Owens v Owens [2017] EWCA Civ 182, Sir James Munby, para 98).

When this happens, it can have serious consequences. In the well-publicised case, Mr Owens defended the wife’s divorce petition, arguing that their marriage had not broken down irretrievably. After a contested hearing, the court refused to grant a decree nisi: it was not satisfied on the basis of the facts contained within the petition submitted by Mrs Owens that she had indeed met the legal test, despite the judge being completely satisfied that the marriage had in fact broken down. The decision was upheld in the Court of Appeal and in the Supreme Court, with the result that Mrs Owens has had no choice but to remain married for a further two years (ie until the parties have been separated for five years). It is difficult, perhaps, to imagine a result more at odds with the views of society at large.

Notwithstanding the small number of contested hearings, ‘fault’ based divorce has long been felt to aggravate family conflict. In practice, this often means that the parties have to turn their minds to the reasons for the breakdown of their relationship and often the worst events of their marriage. This can encourage parties to make allegations about the other’s conduct, further damaging whatever remains of their relationship, inhibiting any thoughts of conciliation and sometimes damaging separating parents’ ability to work together positively for the benefit of their children.

Stop-start: Momentum for reform

The Nuffield Foundation, in research led by Liz Trinder, Professor of Socio-Legal Studies at the University of Exeter Law School, presented substantial evidence to support this anecdotal view. In its 2017 report, Finding Fault? Divorce Law and Practice in England and Wales, the Foundation highlighted that the current law fails to establish why the marriage has broken down (given the low rate of contested divorces and lack of any real scrutiny from the court) and that it works directly against agreement and reconciliation.

In light of the difficulties presented by the law as it stands, many family practitioners, most notably the tireless campaign for ‘no-fault’ divorce led by the members of Resolution, have long sought reform. A possibility appeared on the horizon in the form of the reforms proposed by the Family Law Act 1996. This would have ushered in ‘no fault’ divorce. However, whilst the Bill containing the proposed reforms was passed by Parliament, it was never brought into force – and was later quietly repealed.

What are the reforms proposed?

The significant publicity generated by Owens v Owens, including calls for reform from the Supreme Court justices themselves, have forced the government to consider the issue once more, and as a matter of urgency. A consultation was launched in the autumn of 2018 and on 9 April 2019 the Lord Chancellor, David Gauke MP, announced that the government would indeed propose legislation to reform both the substantive law and the procedure relating to divorce at the earliest opportunity.

Following a consultation, the reforms now proposed are as follows:

  • The sole ground for divorce will remain ‘irretrievable breakdown’. However, there will no longer be a need to rely on any of the current ‘facts’. One (or both) of the parties will simply have to submit an application (no longer to be called a petition) containing a statement of irretrievable breakdown.
  • As indicated, there will be an option for a joint application. This will mean that the parties can seek a divorce together.
  • The opportunity to contest (ie defend) the divorce will be removed.
  • The two-stage process will be retained (the government having concluded that this gives parties ‘an important time for reflection’). A minimum time from petition to decree absolute will be introduced. This will be six months ie 20 weeks to decree nisi, to be renamed a conditional order, and a further six weeks to decree absolute, to be renamed a final order
  • The language used within the divorce process will be modernised (as above).

The proposed reforms have been widely welcomed. The removal of outdated language and a simplified procedure will help significant numbers of litigants in person who are now navigating the system. It is intended that the removal of a fault-based system will help parties separate with as little acrimony as possible. This can only have positive benefits for separating couples and their families.

Fundamentally, the very notion of a divorce procedure which encourages conflict and acrimony is now seen as an anachronism in our family justice system, where the judiciary and practitioners at every level are drilled in encouraging the parties to adopt the least damaging solution for themselves and their families. We can only hope that when, and if, the proposed legislation is enacted, it will reflect the spirit of individual choice and compromise, which pervades family justice elsewhere. 

Box-ticking exercise?

Currently the petitioner has to establish one or more of the five available facts under MCA 1973, s 1(1):

  1. that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  2. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  3. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  4. that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petitioner;
  5. that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (MCA 1973, s 1(2)).

About the authors

Philip Marshall QC, who represented the petitioner wife in Owens, is Joint Head of Chambers at 1 King’s Bench Walk and the immediate past chairman of the Family Law Bar Association. Frances Stratton is a barrister at 1 King’s Bench Walk. She specialises in family law.

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Author details: 
Philip Marshall QC

Philip Marshall QC is Joint Head of Chambers at 1 King’s Bench Walk and the immediate past chairman of the Family Law Bar Association.

Frances Stratton

Frances Stratton is a barrister at 1 King’s Bench Walk. She specialises in family law.