On April 6, 2022, one of the most significant changes in divorce law took effect, marking the first major reform since the Matrimonial Causes Act of 1973. The Divorce, Dissolution and Separation Act 2020 introduced ‘no fault’ divorce, fundamentally transforming the process of ending a marriage in England and Wales and removing any need for one party to blame the other party for the breakdown of the marriage.
This reform was triggered by the Supreme Court upholding in 2018 the first instance and Court of Appeal’s decisions to deny a divorce to the wife in the case of Tini Owens v Hugh John Owens.
I [Simon Beccle] had the privilege of representing Mrs Owens, following the breakdown of her almost 30 year marriage. Mrs Owens had brought a petition for divorce on the grounds that the marriage had irretrievably broken down due to Mr Owens behaving in such a way that Mrs Owens could not reasonably be expected to live with him. As the law then required, her divorce petition cited several examples of his conduct in mild and neutral terms to minimise conflict and to try to avoid the divorce being contested. Sadly, Mr Owens decided to contest the divorce with the result that Mrs Owens then amended her divorce petition to allege 27 instances of his unreasonable behaviour towards her.
At first instance, the court ruled that her examples were insubstantial and “part of the rough and tumble of married life”, and refused to let her divorce proceed. Both the Court of Appeal and Supreme Court upheld this decision, meaning that Mrs Owens was blocked from obtaining a divorce until she could satisfy the only remaining basis for a divorce, namely, five years of separation, and thereby forcing her to wait a significant further period of time to divorce Mr Owens before she could move on with her life. Needless to say, this ruling was met with significant public criticism and prompted calls for swift reform to the law to prevent such unfairness from happening again. It was acknowledged that the law as it stood gave controlling parties the ability to effectively force an individual to remain in a marriage against their will until the expiration of five years (unless there had been desertion or adultery).
The Government listened to the resulting outcry from this case and with cross party support, Parliament passed The Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022. This introduced for the first time ‘no fault’ divorce and brought the legal framework for divorce in England and Wales into line with much of the Western world which already had ‘no fault’ divorce.
In addition to reducing potential conflict at the start by removing the need for blame from divorces, this Act simplified the divorce terminology and allowed, for the first time, joint applications for divorce to be made, so that it is no longer necessary for one spouse to divorce the other, with the power imbalance that implies and, enabling couples to make a joint decision to end their marriage.
Although the introduction of ‘no fault’ divorce was a ground-breaking moment in the history of English family law, there is still much progress to be made. Resolving the divorce, financial claims and issues relating to children remains emotionally and financially taxing and further reforms are needed to ensure that English family law remains in step with modern life. One key step toward this goal is making nuptial agreements (‘prenups’/’postnups’) automatically legally binding. Such agreements can provide clarity and security for couples, helping to prevent contentious, expensive and lengthy financial battles in the event of divorce. However, at present, the court still retains a discretion to override them. Having been given the opportunity by the introduction of ‘no fault’ divorce to take a joint decision to end their marriage, couples are still being denied the certainty of having a previous joint decision as to how they regulate their financial claims on divorce upheld. The law, as it currently stands, gives parties the opportunity to challenge nuptial agreements and, with it, plunging them into unnecessary conflict, expense and uncertainty of outcome.
Please click on the link to read the concise Judgment: https://supremecourt.uk/uploads/uksc_2017_0077_judgment_4e6eb9f8a9.pdf
For further information, please contact Simon Beccle or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4396.
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To learn more about Prenups and Postnups, you can download a free copy of our Essential Guide to Prenuptial and Postnuptial Agreements here.
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