New “No-Fault” Divorce Regime in England Takes Sting out of Split?
On 6 April 2022, The Divorce, Dissolution and Separation Act (2020) (the “Act”) came into force in England and Wales, introducing a “no-fault” regime making the legal process for divorce less acrimonious (or so it is hoped).
The background to this reform may be found in the case of Owens v Owens, where Mrs Owens, 66, filed a petition against her husband, Mr Owens, 78. In many respects, this case is unexceptional, but for the fact that Mr Owens contested the allegation of his unreasonable behaviour and that the Supreme Court dismissed Mrs Owens’ appeal to seek a divorce from Mr Owens, meaning that Mrs Owens had to remain married to Mr Owens until the two had been separated for five years.
Until the Act came into force, spouses seeking a divorce in England and Wales had to choose between adultery, “unreasonable behaviour”, desertion of two years, two years’ separation with consent or five years’ separation, while a spouse seeking to divorce in two years or less had to choose between adultery, unreasonable behaviour or desertion. The election of which ground to use in a petition could lead estranged spouses to bitter ill feeling before even turning their attention to the subject of finances or child arrangements. In practice, spouses and their legal advisors seeking to avoid acrimony from the start adopted anodyne evidence designed to mitigate the hurt with stock phrases in a petition, for example, including: “the respondent spends too much time at work,” or “the parties no longer share a bed.”
By allowing spouses to divorce without assigning fault, the aim of this new legislation is intended to support spouses to focus on the practicalities of divorce, such as financial and child arrangements. Other aspects of the Act include making it more accessible by adopting plain English, for example, changing “decree nisi” to conditional order and “decree absolute” to final order. In practice, the Act could also translate into money saving potential, as spouses focus their legal spend on sorting out a financial settlement rather than engaging in bitter acrimony.
In Hong Kong, the Matrimonial Causes Ordinance (Cap.179) (the “Ordinance”) provides one sole ground for divorce – irretrievable breakdown – that is supported by either an allegation of adultery, “unreasonable behaviour”, desertion of one year, one year separation with consent or two years’ separation without consent. In effect, the Ordinance provides for three “fault” facts and two “non-fault” facts. As well as the Ordinance, case law and developments in practice directions issued by the Judiciary for financial and child arrangements continue to govern the court’s attitude towards encouraging spouses to reach settlement, such as through mediation.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
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