If you want to get divorced in England and Wales you must still provide reasons for the court. Unless you are relying on the fact that you have lived apart for at least 2 years then a petitioner must provide evidence that the respondent is at fault. In 2015 60% of divorces were based on fault.

The Current Law

This derives from the Matrimonial Causes Act 1973 and in particular section 1(2). This requires the petitioner to prove the marriage has irretrievably broken down owing to at least one of the below five reasons:

A – The respondent committed adultery

B – Unreasonable behaviour on behalf of the respondent

C – The respondent has deserted the petitioner for at least 2 years.

D – The parties have lived apart for at least 2 years and the respondent consents to the divorce

E – The parties have lived apart for 5 years (consent not necessary)

Behaviour remains the most commonly cited reason with 52% of women and 37% of men using this reason in 2017. However, this can cause unnecessary additional acrimony between the parties. It has become common practice for parties to agree the narrative in advance to ensure that progress through the courts is not held up. In fact, a report in 2017 states only 30% of respondents said the reasons selected matched the actual reasons for divorce.

Can you refuse to divorce?

When a respondent is served with the petition for divorce by the court they must complete and return an acknowledgement of service. This requires them to confirm whether they intend to defend the divorce. If they choose to defend they have 21 days to respond beginning from the date the acknowledgment of service is required to be filed with the court. In practice, this is rare as the petition filed by the petitioner is usually a pretty good indication that the marriage has broken down.

Owens v Owens

Mr and Mrs Owens were married in 1978 and Mrs Owens considered the marriage to have broken down in 2012. She left the marital home in 2015 and issued divorce proceedings citing Mr Owens behaviour as the reason. Mr Owens chose to defend the divorce. Mrs Owens subsequently provided 27 examples of Mr Owens’ unreasonable behaviour in her submission. The judge found that these were ‘flimsy and exaggerated’ and her petition was dismissed. Mrs Owens appealed all the way to the Supreme Court but was unsuccessful overturning the original judge’s decision.

The Supreme Court re-confirmed the 3-part test that should be applied when behaviour is disputed is: (i) determine what the respondent did or did not do; (ii) what effect did this have on the petitioner and (iii) evaluate whether in light of this that it would be unreasonable for the petitioner to continue living with the respondent.

The result for Mrs Owens is that, since Mr Owens does not consent to the divorce, she must remain married until they have lived apart for 5 years. No doubt 2020 cannot come quick enough for Mrs Owens.

Reform of the divorce law

It has been a long-held belief by many legal practitioners that the current law is due for an overhaul. In 2018 the Government launched a consultation paper and now propose the following changes through the Divorce and Dissolution and Separation Act 2019:

  • The sole ground for divorce will be the marriage has irretrievably broken down
  • Fault will no longer need to be proved
  • Parties should be able to apply jointly
  • Minimum time frame of 6 months from petition to divorce (including 20 weeks from petition to Decree Nisi)

Future Timeline

So, where are we now? The government’s position is that the new law will be brought forward ‘as soon as time allows’. What that means in practice is difficult to predict.

The Divorce, Dissolution and Separation Act 2019 had its first reading in Parliament on 13 June 2019. Further legislative dates have yet to be announced but it seems likely that it will become law by the end of 2020, if nothing else gets in the way.

Amaze Your Friends

1868 must have been a very happy year all round with only 23 divorces recorded. That compares somewhat with 101,669 in 2017.

The current average age for men divorcing is 46, women 43

The current average length of marriages in UK is 12 years. So, if you are a man aged 34 or a woman aged 31 you should maybe give it a year!

Latest statistics suggest that 42% of marriages in UK will end in divorce. As a plus, this is at its lowest level since 1973.