One of the biggest changes in family law in decades was the establishment of no-fault divorce and the removal of the requirement to establish grounds for divorce in order to legally dissolve a marriage.

Ever since the case of Owens v Owens demonstrated the need for marriage and divorce law to change, the establishment of no-fault divorce in 2022 enabled people in marriages that had irretrievably broken down to end them without the inherently contentious process previously required.

This was seen by some solicitors and the judges who made what they described as an “uneasy” decision to reject the divorce request, and to understand why the changes to the law happened, it is important to explore the problems with the previous system.

Why Were Grounds For Divorce Previously Needed?

Before the Divorce, Dissolution and Separation Act, married couples could not simply divorce without there being legal grounds to do so. 

This process, known as fault-based divorce, meant that any application for a divorce for any marriage that had broken down in a way that could not be reconciled had to be for one of five reasons, each of which had financial and legal implications:

• Adultery.
• Unreasonable Behaviour, the interpretation of which ultimately leading to the uneasy conclusion to Owens v Owens.
• After two years of separation if both parties consent.
• Two years of desertion.
• After five years of separation, if only one person consents.

Why Were There Problems With Fault-Based Divorce?

The simplest issue was that outside of the grounds for divorce based purely on years separated, there was a lot of room to interpret the law loosely or narrowly, something that led to significant issues with establishing an effective precedent.

The “unreasonable behaviour” ground was a particular point of contention as the interpretation and implementation of the law could vary greatly depending on the courts in question.

Some judges could set a firm standard for which behaviours were intolerable, whilst others adopted the point of view that any behaviour that would cause someone to issue a divorce position was, by definition, unreasonable.

Ultimately, the fundamental issue is that it created an inherently adversarial and contentious process that could and often did lead to less-than-amicable conduct such as vindictive contesting of a divorce simply to stop the other person leaving, or making acrimonious accusations.

It also, conversely, did not allow a couple who had simply drifted apart to make an amicable split; in the courtroom they were, legally at least, adversaries.

How Did The Law Change?

The change to the law was to remove the grounds for divorce entirely, replacing them with the simple requirement that a marriage has to have irrevocably broken down before the application is made.

The application can be made jointly, or it can be made by one person against another, allowing for an amicable dissolution of a marriage.

It also removed the ability to contest a divorce, outside of reasons of legality such as jurisdiction, validity or the marriage having already legally ended.

It provides a period of reflection of 20 weeks to provide an option for reconciliation, along with a further six weeks following a conditional order and finally a final order to legally end the marriage.