Executive Summary
In this essay, I will argue that the creation of the Divorce and Dissolution Act 2020 has adequately responded to the criticisms of the previous law on divorce and separation and has had a positive impact on family law as a result of this. Due to the breadth of changes in family law over the years, I will focus predominantly on the criticisms of The Matrimonial Causes Act 1973, and why it received the criticism it did. There will also be a discussion on what changes the new act produces and what this now means for couples, whilst considering the advantages and disadvantages it subsequently has. When considering whether the previous criticisms have truly been satisfied, I intend to critically analyse the main disapprovals in case law and legal journals and prove how the new no-fault divorce has in some way responded to the criticism, and if it hasn’t – whether there can be scope for improvements in the future. This essay will also touch on the law around financial provisions and the division of assets and how this may still incite conflict that law makers are wishing to shy away from.
I will address how the new law might work hand in hand with a rise of litigants in person, a rise in divorce cases, as well as taking a focus on what it could mean for domestic violence victims who wish to divorce an abusive partner. I will conclude that whilst the new no fault divorce law is not perfect and may not improve every aspect of criticism that previous statutes created, it is a huge leap in the right direction, improves on the issues of the old law and demonstrates the willingness of lawmakers to discuss areas of family law that require attention and improvement.
Criticisms faced by the old law: The need to reform
Prior to the changes in divorce law, the previous statute faced huge criticism over its inability to recognise that all divorce proceedings did not need to amount to conflict. Under the old law, the main criticism was the single and only ground for divorce: an irretrievable breakdown of the relationship. This could be proven to the court if the petitioner could demonstrate one or more of the five reasons for this breakdown.
-
Adultery
-
Unreasonable behaviour
-
Desertion
-
Two years separation with consent
-
5 years separation
The issue faced with these fault-based facts that need to be proved was the subjectivity in highlighting these culpabilities to the court. What could be deemed as unreasonable behaviour to one judge may differ to another. It blurs the line between factual matters of the law and opinions. This was demonstrated in the ground-breaking case Owens v Owens which led lawmakers to consider the high threshold of certain facts. Mrs Owens’ petition was dismissed after the court refused to accept that her marriage had irretrievably broken down. This led to huge public uproar as it appeared that the court was interfering in the private life of individuals and in some ways compelling petitioners to stay in a marriage they didn’t wish to. Lord Wilson stated that the decision gave rise to ‘uneasy feelings’ and should prompt lawmakers to ‘consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce’.
Owens proved to be a ‘troubling’ case as expressed by Lady Hale, who further explained that it was not for the judges to change the law written by Parliament and their role ‘is only to interpret and apply the law’. This did hint that a change in the law would not only benefit petitioners, but the lawyers who would have to advocate on their behalf and the judges who would have to subsequently decide on their behalf. In an early debate on divorce law prior to the recent change, Baroness Anelay of St Johns used Owens as an example that ‘divorce law is not working… and therefore increases acrimony within the family’.
It was seen as problematic for the law to cite blame as a key factor for divorces as not all breakdowns of relationships are due to blame. Nuffield Foundation found that whilst 65% of divorces are based on fault, only 29% of the people being assigned the blame believe the reasons are true. This demonstrates couples having no choice but to inaccurately state a reason to the law for divorcing which is far from the truth. The law previously did not acknowledge that mutually a marriage may simply not be working, or individuals may discover after a few years that they are incompatible, and not for a specific reason, such as infidelity. It has also been criticised that the lack of change in divorce law demonstrates how little it is considered in the law. Compared to other countries, ‘England and Wales [have] not changed in over 50 years’ despite how common and frequent marriages end. The Australian journal of family law stated that whilst the end of a marriage might be painful, ending the necessity to point blame ‘should be right at the top of the list of priorities’. Australia in their Family Law Act 1975 introduced no fault divorce, demonstrating a huge lag for English and Welsh law for maintaining an old-fashioned statute in a post-modern society.
Additionally, one must consider the effect that the old law had on families with children or victims of domestic violence. It allows for more conflict to arise and will undoubtedly have an impact on children who are indirectly dragged into proceedings. Considering domestic violence victims, the old law provided little to no protection to victims who are in vulnerable positions and were made to cite blame on partners they feared. They had to face turbulent court hearings and return home with their abusers. The alternative to this was to wait 2-5 years and hope to divorce due to separation, which ultimately would trap these victims in an unhappy and unsafe marriage.
Divorce, Dissolution and Separation Act 2020
In April 2022, the new divorce act came into practice with individuals for the first time in England and Wales having the ability to divorce without citing blame. This allows analysis in seeing whether in just over a year, it has proved to be the gift to family law it was supposed to be, or instead has carried a disservice. Considering whether the new act sufficiently deals with the criticism from the previous Matrimonial Causes Act that has governed family law for so long, we must consider the new changes and whether they have created relief in this area of the law or potential problems. We must also consider the data that links to the act and how that might link to the advantages and disadvantages of the bill, to be able to analyse the extent to which criticisms have been acknowledged and dealt with.
Changes in the new law
-
It is no longer a requirement to provide an explanation as to why your marriage has broken down
This directly deals with the main criticism of the old law and demonstrates that lawmakers have chosen to not create more acrimony for families, and instead allow families to focus on how to move forward and not why the marriage has ended.
-
No facts as to conduct or blame need to be proven
This will help to reduce conflict, will help court proceedings stay concise and save money. This will allow the court to focus on legal facts and not subjectivity and private family relations.
-
A divorce cannot be contested unless it is to challenge the validity of the marriage or jurisdiction
This will mean that there is less likelihood of conflict in divorce proceedings to arise as the process has been simplified.
-
A joint application can also be made by couples who mutually decide to divorce
-
This addition to the law acknowledges the ability for couples to mutually decide to end their marriage and focus predominantly on sharing assets, custody arrangements and financial orders.
-
Language has been simplified to ‘conditional order’ (formerly Decree Nisi) and ‘final order’ (formerly Decree Absolute)
Making the law more accessible and easing the process for lay people.
-
Timing has changed to reflect a minimum period of 20 weeks between the start of the proceedings and the making of a conditional order, and then 6 months to obtain a final order
The law still acknowledges a reflection period but allows for proceedings to not take longer than required.
-
New online service available for applying for divorce
This will help accessibility and will allow individuals to have autonomy in making this decision by themselves without needing to hire legal help.
Advantages and Disadvantages of the DDSA
It can be argued that the advantages of the Divorce, Dissolution and Separation Act demonstrate that it has sufficiently answered the criticisms of the previous law. With the changes to family law, it establishes that there will be a reduction in conflict and difficulties associated with divorce. Removal of blame also promotes a cooperative family life, with less of a burden on children having to relive their parent’s marriage failure in court. Removal of the ability to contest divorces has also positively considered those in domestic abusive relationships, who can now leave those marriages with more support from the law. Following the addition to no-fault divorce in the United States, this led to a reduction of domestic abuse victims in unwanted marriages. Looking at the strain on court cases and huge backlog of cases following the Corona Virus 2020, the online system will allow court administration costs to be cut and will help ease this strain. Lastly, the removal of contesting a divorce also puts individuals of a domestic violence relationship at ease, as whilst they are rare, a contested divorce would prolong proceedings; an issue that is no longer apparent with the new act.
However, it cannot be ignored that the new Divorce Act isn’t wholly perfect and still has some attributes that demonstrate that not all criticisms were reflected on. Whilst it is acknowledged that the new Bill makes the divorce process easier and more accessible, this will lead to a rise in cases as demonstrated in the earlier graph. Sir Edward Leigh noted that by looking at countries like Canada, introduction of a no-fault divorce led to a huge ‘sixfold increase in just two years’. It can be seen to undermine the institution and sanctity of marriage as not having to prove an irretrievable breakdown can mean couples can be quick to divorce. The spike in divorces also reflects a rise of litigants in person, meaning more individuals are being divorced with little to no legal advice. Individuals are not seeking other remedies to dealing with conflict and are seen to be jumping straight to divorce without considering alternative dispute resolutions. Looking at how this might impact women in a marriage, Sir Edward Leigh also noted that a US study demonstrated that ‘75% of low-income divorced women with children had not been poor when they were married’. Coupled with a lower likelihood of legal advice, those in lower bargaining positions are leaving marriages with little to no financial support. Whereas Douglas Allen in the Harvard Journal of Law highlighted that the real impact of no-fault divorce lies on children, as increasing rates meant more broken families. Additionally, it has been criticised that the new Act could have taken this opportunity to get rid of the 1-year rule imposed by previous acts. This was done in Spain and has been expressed to help domestic violence victims leave relationships quicker. Lastly, the removal of no-fault also means a lack of accountability being attributed to an individual who might deserve blame. Removing blame might make the process easier but means that no responsibility is being taken as to the dissolve of the marriage as couples have no emotional outlet. Escaping liability might lead to long term effects on one party in the marriage who might seek external remedies to seeking retribution for the pain suffered that led to the end of the marriage. It must also be considered whether a lack of confrontation of emotions in this stage, may lead to a larger outburst when considering financial implications, an already tricky and extensive area of the law.
Do the new changes sufficiently deal with previous criticisms?
It can be acknowledged that the recent changes to divorce law have reasonably and suitably dealt with the criticisms of the new law. It has demonstrated a moving forward of family law, and an abandonment of archaic law. It has meant that the divorce process can be quicker and less emotionally damaging. Whilst there are undoubtedly still aspects of the law that could be improved, it is an Act that marks comprehensive reform and change. The new Act deals with the most popular and known criticism of the previous law and eradicates the need to cite blame. As petitioners still have to initiate the proceedings with a prayer that their divorce has broken down, couples can use that opportunity (should they wish for an emotional outlet) to mention why, however it is no longer prompted by the law. It shows that cases like Owens v Owens would have been able to divorce instead of being denied by judges too. The remain of the 1-year rule might help to control the spike in cases as a divorce cannot go through under a year of marriage. It is also a welcoming change that couples can jointly decide to divorce, as opposed to one party raising a petition against another. Of course, the new Act does not wholly consider financial provision/separation of assets and how that might lead to conflict but will hopefully be a future call for reform for Parliament.
Looking forward to future reform – Financial Provisions
The addition of no-fault divorce into English law comes with it the possibility of it causing a larger strain on other areas of family law. Considering the lack of emotional outlet usually afforded to divorce proceedings by citing blame, it is possible that the next likely area of law that will have a direct consequence to this is the division of assets and financial provisions after a dissolution of a marriage. Baroness Deech highlighted that reform ‘should be directed’ instead to the law on financial provisions. The new law does not consider that financial division is where a lot of conflict begins. Removing conflict in divorce does not mean a direct removal of conflict for the division of assets, an arguable more complicated and difficult route. The Lord Bishop of Portsmouth also mentioned that if the law truly addresses emotional fallout and wants to reduce conflict in family cases, a wider reform must be considered for financial provisions.
Conclusion
After 50 years with no change to this area of family law, it is a receiving change to acknowledge the positivity that the Divorce, Dissolution and Separation Act will bring with it. Divorce law is a lot kinder to all parties involved and acknowledges the emotional damage it might inflict on petitioners and seeks to remove that. In that sense, this new Act is a huge improvement on the Matrimonial Causes Act 1973 and deals with its predecessors flaws satisfactorily. This new law also supports victims of domestic violence and shows a real acknowledgment by Parliament that it was an area that needed significant reform as mentioned throughout this essay. The new law also shines a light on family law as an area of reform, also seen with the new Domestic Abuse Act 2021. Whilst I agree that the new Act reasonably deals with prior criticisms, I do believe that if Parliament is to truly succeed in the removal of conflict associated with family court proceedings, a wider look needs to be redirected towards financial provisions to ensure the entire divorce process is less acrimonious. However, I believe this initial reform in this area is the start of a closer lens of analysis being attributed to family law.
If you’re considering or going through a divorce, click below for a free initial consultation with one of our expert divorce solicitors.
BOOK FREE CONSULTATION
