Managing Partner Katie McCann examines the impact and scope of no fault divorce legislation in Lawyer Monthly

Our founder and managing partner Katie McCann analyses no fault divorce, its utility and the potential drawbacks of such legislation.

Katie’s article was published in Lawyer Monthly, 6 May 2022, and can be found here.

We’ve all been gripped haven’t we…or should I say morbidly fascinated with the most recent Depp and Heard trial in the United States.

Depp is suing Heard for $50 million further to the article she wrote claiming to be “a public figure representing domestic abuse”; which Depp says cost him his career and his lucrative role in Pirates of the Caribbean. Heard is counter suing Depp for an eye watering $100 million.

Whichever way we look at this, it is a relationship bonfire being played out for all to see; but underneath this, despite their formal divorce being finalised years ago, it is the tale of a couple besieged by the spectre of domestic violence, with allegations on both sides.

Domestic abuse in England and Wales is on the rise. ONS figures from November 2021 saw the number of police recorded domestic abuse related crimes rise by 6% TO 845,734. Notably, statistics show that one in three victims are men.

The long awaited, Divorce and Dissolution Act 2020 came into force on 6 April 2022 and heralded the introduction of “No Fault Divorce”. Whilst it is still too early to tell, this legislative change may have positive benefits for abuse victims seeking an easier separation from their partners in complex emotional circumstances.

New family law in England and Wales has recently done away with the “need” for couples to air their dirty laundry in public, but has also taken away the “opportunity” for one party to hold the other to account.

Couples can now:

• Divorce solely on the basis of the breakdown of the marriage. There is no longer any need to “blame”. Previously, if couples had not been separated for a defined length of time (2 years separation with consent of other party; 5 years separation; desertion) then one party had to be blamed.
• Divorce can now be applied for as a “joint” petition.
• There is a minimum “reflection period” between making the application and obtaining the “conditional order”; which is the old Decree Nisi.
• Contested divorces are no longer possible.

Theoretically speaking, Depp and Heard (if they could have seized this jurisdiction) could have divorced without citing one issue, which could have made their separation a lot less hostile.

The main benefits of the new system over the old:

• As just mentioned, the main aim of this new legislation is to remove the need to argue about blame. This can raise temperatures enormously. Some couples can’t focus on anything else, and a lot of unnecessary time, cost and angst is spent on the contents of the divorce petition.
• It allows couples who have fallen out of love but want to stay amicable to petition together. It doesn’t have to be an adversarial experience.
• Keeping temperatures down during a separation can only be the right thing for any children involved.
• It allows a party who has been stuck in a marriage where there has been domestic abuse, control or coercion the freedom to end the marriage without the need to wade through the other parties’ behaviour and risk backlash or cross petition, making things considerably more difficult and stressful. This sort of litigant also does not need the cooperation of the other person. It is hoped that this freedom will allow people to leave abusive marriages when before they may have felt the process would be too intrusive.
• There is a period of reflection lasting a minimum of 20 weeks to allow the parties to think about whether this is the right thing to do or to take advice to make progress and even settle issues surrounding the children and finances.

But inevitably there must be some negatives.  Not enough time has elapsed yet from the inception of this new regime to see whether the naysayers are in fact right, but the “cons” can’t be ignored.  They might look something like this:

• I mentioned at the start of this article the potential for “lost opportunity” to hold the other party to account. In some circumstances, it may be the case that one of the parties has behaved in such a way throughout the marriage that it feels erroneous to end the marriage on the basis of “no fault”, when fault has clearly been present. Under the old regime, if a parties’ conduct reached a certain level, then the court could take this into account when deciding how the parties finances would be distributed.
• It may be that if a party feels that such behaviour should become a factor in their financial matter such behaviour would then have to be raised on the documentation within those proceedings. But how does that sit with “no fault” being apportioned when determining the breakdown of the marriage? This area will no doubt develop as the caselaw is reported.
• Divorce can now be applied for jointly. This approach is a very collaborative one. It could be argued that parties in a coercive and controlling relationship can be coerced into a joint application, to give the external impression that this is an amicable and joint decision, when in fact that couldn’t be further from the truth.
• There are some reports that a no fault regime makes the ending of marriage very easy. It could potentially encourage more couples to divorce without due consideration and rush into decisions that they might otherwise have not made under the old regime when reasons had to be given.

All in all, the benefits of the new system far outweigh any negatives. If this had been available for Depp and Heard, maybe they would have been able to bypass “fault”, concentrated on dividing their finances and be considerably better off, instead of lining their very expensive lawyers pockets.