What are the grounds for divorce? - Family Law Partners

What are the grounds for divorce?

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What are the grounds for divorce?

Co-Author Yasmin Jeffrey

The Divorce, Dissolution and Separation Act 2020, which came into force in April 2022, introduced no-fault divorce in England and Wales. The introduction of no-fault divorce significantly altered the divorce process by removing the requirement to assign blame when applying for divorce.

The changes to the grounds for divorce

The old law required people wishing to divorce to state that their marriage had irretrievably broken down (the ground for divorce) and provide evidence of this based on one of the following ”facts”:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years’ separation
  • Five years’ separation

Since the introduction of no-fault divorce, couples who are divorcing are no longer required to prove any of the above ”facts”, regardless of the reason for their separation. The sole grounds for divorce remains the irretrievable breakdown of the marriage, but subsequent to the Divorce, Dissolution and Separation Act 2020, all that a divorcing couple need to do is to confirm in their application for divorce that they consider the marriage to have broken down irretrievably.

Why was no-fault divorce introduced and what are the benefits?

The introduction of no-fault divorce was intended to reduce conflict, minimise legal costs and promote more constructive separation. The previous fault-based approach could result in lengthy and acrimonious legal battles due to couples being forced to engage in negative conversations, placing blame on one another from the initial application stage of the divorce. This put a barrier in the way of couples engaging in meaningful discussions and starting the process off amicably and instead risked increased conflict between them. No-fault divorce is intended to encourage couples to start the divorce process from a place of consensus and be more focused on a swift resolution of financial matters as opposed to arguing over ‘who did what’ in the marriage.

Former president of the Supreme Court, Baroness Hale, advocated for the introduction of no-fault divorce and argued that simply being able to state that your relationship has broken down, without the need to hold the other person accountable, could ease some of the stress and pain that couples often experience on separation.

In recent years, divorce rates have increased and the social stigma of getting a divorce has decreased. It has become more common for couples to seek divorce simply because they are unhappy in their relationship and have reached a stage where they both wish to go their separate ways. The old law forced couples in this situation to put together evidence to place blame on their partner and to prove to a judge reading their application that they were entitled to divorce even though neither person was at fault.  This led to many divorce petitions including a list of “unreasonable behaviours”, reluctantly put together by one person and causing great offence to the other person.  The drafting of such a list was often a fairly artificial process, with many solicitors sharing anecdotally that the happiest of married couples could easily formulate a list of their partner’s “unreasonable behaviour”.

Another unwelcome side effect of the old divorce laws was that it forced some individuals to remain unhappily married if they were not able to satisfy any of the required facts.  The only facts that were immediately available were “unreasonable behaviour” or “adultery”.  Adultery was incredibly difficult to prove which meant that to be relied upon it generally needed to be accepted and agreed by the person who had committed the adultery. Unreasonable behaviour was therefore the most commonly used fact until the high profile case of Owens v Owens, in which a wife’s divorce petition was refused on the basis that her list of unreasonable behaviours were not “serious enough” to justify a divorce.

This case was really the turning point for divorce reform and highlighted the fact that the divorce process required reform to align with modern attitudes to marriage and divorce. No-fault divorce was introduced to reflect the shift towards normalising that you should not have to assert blame on your spouse to get a divorce but instead should be able to apply because you no longer wish to be married, regardless of whether or not that is a mutual decision.

A breakdown of the benefits of no-fault divorce

  1. It is no longer possible to contest a divorce.

Under the old law, the respondent to the divorce petition was able to contest those allegations, which is what happened in Owens v Owens.  This essentially meant that if a person did not want to get a divorce, or disagreed with the reasons given for the divorce, they could resist it through the courts and the person wanting to get the divorce would either have to go through an entire court process, or wait until a required period of time had passed (two or five years) before getting divorced.  With the current law, if one person wishes to get divorced, there are very limited options for the other person to contest it. The only way to contest a divorce, since the new legislation, is on the basis that the courts of England and Wales do not have jurisdiction to deal with the application, or on the basis that the actual marriage was not entered into validly. Both of these are technical points in law and a person cannot contest a divorce application just because they disagree or do not want to get a divorce.

  1. Reduces costs.

The old law meant that couples often engaged in protracted correspondence discussing each other’s faults in the marriage, arguing about the fact that the application was going to rely on and trying to agree the wording of the petition. No-fault divorce has reduced this correspondence and therefore reduced solicitor’s fees. The process has been so simplified that many couples make the online application for the divorce themselves, saving even more legal costs.

  1. More child focused.

Where children are involved, no-fault divorce should enable couples to be more child-centred in their approach and create a less negative environment for their children. The requirement to assert blame under the old law created animosity between parents and children risked being exposed to this animosity through hearing arguments between parents or being involved in conversations such as “mummy told me you did this,” or “daddy said you did this.” No-fault divorce has meant that parents are less distracted at the outset of their separation with placing blame on one another and this reduces the risk of children being involved in negative conversations regarding their parent’s divorce.

  1. It takes less time and includes a period of reflection.

The divorce application itself takes less time owing to the removal of being required to prove the grounds for divorce based on the old facts.  This means that the initial application is very straightforward and many couples complete it themselves without the need for a solicitor. However, no-fault divorce did introduce a 20-week cooling off period which provides couples with time to reflect on their relationship and ensure they are both certain there is no scope for reconciliation before the process has gone too far. It gives time for couples to confirm that their marriage breaking down is ‘irretrievable.’ This reflection period comes after the divorce application is issued, and before you can apply for the conditional order.

  1. Couples can apply for divorce on a joint basis.

The Divorce, Dissolution and Separation Act 2020 also introduced joint divorce applications. This provides couples with the option to apply for divorce on a sole or joint basis. Under the old law, there was no option for couples to apply for divorce on a joint basis, instead one party was required to file a divorce petition on a sole basis . The new legislation introduced joint divorce applications to align with the no-fault position. Applying on a joint basis allows couples to set an amicable and cohesive tone from the offset which hopefully will continue through to their financial negotiations and discussions around the children.

What to do if you are thinking of getting divorced?

If you have decided that your marriage has irretrievably broken down and you are applying for divorce, it is advisable to seek legal advice on the process. Our specialist family lawyers can help you, please get in touch to arrange a consultation.

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