Your Fault or Mine? Divorce Proceedings under the Spotlight

The divorce regime in England and Wales is currently regulated by the Matrimonial Causes Act 1973 (“the MCA”; an Act of Parliament that received Royal Assent on 23 May 1973. 

It was widely acknowledged that the MCA is archaic, being nearly 50 years old, and in urgent need of reform. This led to the production by Government of the Divorce, Dissolution and Separation Bill (‘the Bill’), in June 2019, which, until recently, was being scrutinised by Parliament. 

Review of the Bill had been side-tracked on several occasions; firstly, by the unlawful prorogation of Parliament and further by the general election, but was subsequently reintroduced to Parliament. 

The latest available figures suggest that 42% of marriages end in divorce (Office for National Statistics, 2020). The recent lockdown perhaps accelerated the need for law reform in this area as many speculate that either divorce rates will increase, or there will be a lockdown baby boom (The Guardian, 2020). Rising levels of time spent trapped indoors together, increasing economic pressure, and conflicting childcare and home-schooling responsibilities can all be recipes of disaster for that once loving relationship. Further to this, January often sees an influx of divorce petitions due to spouses spending a stressful holiday period together (Standard, 2020). Only time will tell whether the lockdown will shake up these statistics.

What is the divorce procedure as laid out in the MCA?

The MCA sets out that there is only one ground for divorce: that the marriage has broken down irretrievably. In order to satisfy the court that the ground has been made out, the petitioner (i.e. the spouse applying for the divorce) has to demonstrate that one of the five ‘facts’ identified by the MCA can be made out: 

  • Adultery
  • Unreasonable behaviour 
  • Desertion 
  • 2 years’ separation with consent
  • 5 years’ separation without consent 

The MCA does not cater for a “no-fault” divorce in the UK, instead requiring the divorcing couple to argue that their marriage has broken down irretrievably and to place blame on one another (Crisp and Co, 2020). The first three ‘facts’ outlined above are deemed to be ‘fault-based’, with the latter two centering on separation. It is widely recognised that “unreasonable behaviour” is the most commonly cited reason for divorce in the divorce petition; over 80% of wives and nearly three-quarters of husbands rely on this fault-based ‘fact’ (Crisp and Co, 2020). Reasons for over-reliance on this ‘fact’ may simply be due to its broad, wide-ranging offerings of what can be deemed “unreasonable behaviour”; extending from arguably trivial actions such as excessive DIY habits, through to more serious allegations of domestic abuse (RC Solicitors, 2020). Besides, relying on this ‘fact’ requires both parties to drudge up past, negative behaviour and fire allegations at each other as if they were in a boxing ring to prove to the court that they can no longer remain as husband and wife. 

Despite some parties being unwilling to rely on either of the ‘fault’ based ‘facts’, they may be left with no alternative; 2 years of separation may be costly and unpractical where the parties are unable to live as two separate households or be reluctant to remain married on paper, whilst attempting to move on with their lives. 

The Divorce, Dissolution and Separation Bill 

The Divorce, Dissolution and Separation Bill offers a ground-breaking shake-up of the current laws surrounding the divorce procedure, but whether its impact will have the desired effect is soon to be felt. The new procedure is designed to override the current divorce procedure in place, as mandated by the MCA. However, despite the proposals, spouses will still be required to make out the ground of divorce (that the marriage has broken down irretrievably), but instead of proving one of the five ‘facts’ outlined above, the petitioning spouse, or both parties jointly, must make a declaration of irretrievable breakdown. No evidence needs to be presented to support this statement; the court is simply required to grant the provisional decree of divorce. The introduction of a ‘no-fault’ system would see the UK adopt a similar procedure as seen in the US and Australia.

Arguably, the sanctity of marriage is diminishing with the introduction of a ‘quick divorce’ where parties no longer have to fight to keep their marriage alive and can simply walk away. However, this has been somewhat addressed in the Bill, through the introduction of a new timeframe which imposes that 20 weeks must pass before a conditional order can be given, commencing from the date that the proceedings were initiated. This time is likely to encourage the parties to have a period of reflection and attempt mediation before throwing in the towel for good. 

The Bill has also introduced measures that prevent an obstructive spouse from opposing the divorce if the other believes that the marriage has broken down irretrievably. 

Is it a good thing to scrap the MCA?

There are calls for the UK to have a divorce process without the need to show wrongdoing and to end the ‘blame game’ that currently exists (Gov.uk, 2020). The current laws force spouses to remain married reluctantly (BBC, 2018), instead of allowing parties to separate amicably, avoid needless antagonism, and remove the conflict which is instilled in the current process. Aidan Jones, Chief Executive at relationships charity Relate, acknowledges the devastating impact that divorce can have, not only on the couple themselves but any children involved and this must be avoided (Gov.uk, 2020). Thus, the Bill and proposed reforms address some of these challenges. However, some aspects of the current regime will remain, including the rule that spouses cannot obtain a divorce within a year of marriage. Some may argue that the Bill has not gone far enough but others positively welcome the changes.  The Bill has since been approved by both Houses of Parliament, and the Divorce, Dissolution and Separation Act 2020 received Royal Assent on 25th June 2020 (Parliament.uk, 2020). Although the reform has received Royal Assent following its parliamentary journey, there remain delays before the new law can be implemented and it is expected to come into force in Autumn 2021 (Streathers, 2020). 

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