No fault divorce is “the start of a journey”

6^th April sees the long-awaited Divorce Dissolution and Separation Act (DDSA) 2022 come into force, dispensing with the need to project blame within divorce proceedings or having to wait in excess of 2 years separation before you can otherwise petition. This marks the first major change to divorce legislation for over 50 years with the introduction of “no fault” divorce.

The legal community and organisations such as Resolution have been campaigning for changes to the divorce process for decades, but the case of Owens v Owens really highlighted the need for change. Here, the wife was denied the right to divorce her husband and was forced to rely on the fact of five year separation, locking Mrs Owens in a marriage that was clearly over. The outcome was not necessarily the wish of the judiciary, but an outcome dictated by the law.

Mrs Owens had petitioned on the basis of her husband’s unreasonable behaviour. The court found that the particulars raised within her petition were not sufficient to satisfy the legal criteria. This resulted in extreme concern for family lawyers as to the necessity to record sufficient allegations of unreasonable behaviour in future petitions and the harm this could inflict upon the divorcing parties’ ongoing relationship and, in particular, the children.

This was the instigator for change. Having to project blame was seen as inflammatory and often introduced conflict to situations where parties had previously been on relatively good terms. The aim of the DDSA is to reduce the impact that conflict and allegations of blame can have on families and bring the divorce laws in line with the government’s approach to family justice. Interestingly, this brings the law in line with the Australian approach, which has been law since 1976.

It is well documented that conflict between parents is detrimental to children. Last year saw the Family Solutions Group report: “What about me: Reframing Support for Families following parental separation”, which expressed the need for better ways to manage parental separation and to minimise conflict, both for the children and the parents themselves, and that the courts are not necessarily the best places for decisions to be made about child arrangements.

The new laws introduce the prospect of both parties making a joint application for divorce with the sole ground of the marriage having irretrievably broken down, reducing the prospect for applications to be defended. This has the aim and objective to make the process less confrontational and to reduce the prospect of the process itself contributing or even creating conflict.

For the majority, this has got to be a move in the right direction. The changes will not eliminate conflict that is inherent in relationship breakdowns, but will no longer contribute or add to it. However, there are some who have been aggrieved by the manner in which their relationship has come to an end and needed the blame process to vindicate their position and help them move on. The new process aims to remove the emotional aspect ordinarily associated with a divorce and, like most things, will not suit everyone. However, for those who have children, this is most definitely the start of a journey for the better management of family separation.