To blame or not to blame: modern divorce

Final year law student, Sophia Ramos, analyses the landscape of family law following the introduction of no fault divorce

Over the years, the landscape of divorce has shifted dramatically, with no fault divorce emerging as a modern defining feature of marriage dissolution. The days of apportioning allegations of adultery or abandonment are no more, allowing societal norms to finally be met with a law that is accurate and present. The no fault divorce law eliminates the requirement for specific wrongdoings, which was a prerequisite under previous divorce law. Thus, where a marriage is irretrievably broken-down there is now the availability to couples for a compassionate and practical solution.

The Matrimonial Causes Act 1973 was undoubtedly outdated and required hostile accusations to be made about the other’s conduct. The Act required parties to prove either adultery, unreasonable behaviour, desertion, or separation (with or without consent) before being granted a divorce. In many cases this ‘blame game’ only made the circumstances worse for those involved. This requirement for conflict or blame does not resonate with modern reasoning for divorce and it is very common for couples to amicably separate.

The cordial and direct no fault divorce approach was introduced by the Divorce, Dissolution and Separation Act 2020.  Coming into force in 2022, the landmark change to divorce law allows married couples to undertake proceedings without the need to apportion blame. Justifiably, the change was met with applause after many failed attempts to introduce such an approach. Juliet Harvey, national chair of Resolution said:

“After more than 30 years of campaigning by our members, we are delighted to see this reform finally come to pass, which will result in a kinder, less adversarial divorce process in England and Wales.”

The aforementioned five requirements allowing couples to divorce under the 1973 Act were removed, as well as the ability to contest the divorce. The parties can also now make a joint application, further enforcing the concept of a faultless divorce and encouraging the idea of a mutual decision to separate. In line with improving ease of process, the Latin terms ‘decree nisi’ and ‘decree absolute’ were also changed to ‘conditional order’ and ‘final order’ respectively.

The new no fault divorce actively discourages animosity, which often arises from the adversarial nature of the traditional divorce proceedings. By removing the need to prove specific wrongdoings, this legislation fosters a more amicable environment for couples seeking to end their marriage. Fundamentally, this approach leads to better outcomes for any children involved, as it prioritises their well-being and minimises conflict during a potentially traumatic transition.

While the advantages of no-fault divorce extend significantly to families with children, they are not limited to these cases. The law streamlines the divorce process, making it more accessible for individuals who simply wish to part ways without assigning blame or engaging in contentious disputes. This saves time and resources whilst promoting a sense of closure and dignity for all parties involved.

The stark decision in Owens v Owens serves as a reminder of the shortcomings of the 1973 Act, where the court’s decision to uphold a marriage despite the desire for divorce highlighted the urgent need for reform. Ultimately, the no-fault divorce law represents a progressive shift towards more compassionate and practical solutions for those seeking to navigate the complexities of marital dissolution.

While the introduction of no-fault divorce is a largely positive development, it was inevitably argued there would be a surge in divorce applications. This increase leads to challenges such as delays in processing divorce cases, a situation that is largely unavoidable given the current state of the court system. Ironically, these delays appear to exacerbate stress and uncertainty for couples who are seeking a more straightforward and progressive separation, undermining the very purpose of the no-fault approach. Interestingly, the latest data reveals a decline in applications, which may be attributed to uncertainty or the unknown.

Additionally, the implementation of a mandatory “cooling-off period” is intended to encourage couples to consider reconciliation and to adequately arrange the logistics of separation. However, this requirement can further contribute to feelings of frustration and anxiety, as couples navigate the time-consuming, complexities of their situations.

Despite the valuable benefits that no-fault divorce offers, it is crucial to acknowledge the challenges that accompany this new framework. Understanding these issues is essential for couples considering an application, as they must be prepared for potential delays and the emotional toll that may arise during the process. An interesting perspective of the approach is that where a party in the marriage is at fault, they are allowed an easy escape as their breach of morality is now not ‘publicly significant’.

The belief that individuals must face public accountability for their actions seems increasingly out of step with modern values, where personal privacy and well-being are prioritized. Without this approach, however, we risk condemning those who are trapped to remain so. By recognising both the advantages and the difficulties inherent in no-fault divorce, couples can make more informed decisions about their paths forward.

The delay in recognising the need for a more equitable system caused unnecessary hardship for many. However, these struggles ultimately shaped the law we have today, one that acknowledges relationships can evolve or end without malice. While it is difficult to fully celebrate the slow pace of change, I recognise that the old requirement for blame was an outdated concept. This more realistic and modern view of divorce is a welcome shift, embraced by both academics and the general public.

Ultimately, I support the change in law, but my main criticism remains the unjustifiable delay and the way the previous system often exacerbated conflict rather than fostering amicable solutions. Therefore, challenges in adapting to this new approach are understandable, given the old system’s entrenched rigidity.  Still, I encourage the focus to be on the freedom and comfort brought by this pragmatic approach, rather than on opposing viewpoints.

Sophia Ramos is in her final year of studying law at Kingston University, with a keen aspiration to pursue a career as a family law barrister.

The Legal Cheek Journal is sponsored by LPC Law.