No-fault divorce and dissolution has now been the only way that new divorce proceedings can be started for over three years. Has this improved the way that family disputes are resolved or has it made things worse?
Under the law that applied before 5 April 2022, to get a divorce, you had to satisfy the court that your marriage had irretrievably broken down. To do this, petitioners had to allege that one of five “Facts” set out in section 1 (2) Matrimonial Causes Act 1973 had taken place:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred, to as ” two years’ separation “) and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as ” five years’ separation “).
(In dissolution of civil partnership proceedings, there were only four Facts available; adultery was not a Fact that could be relied upon, albeit that any infidelity was likely to be pleaded as behaviour instead).
Since 6 April 2022, the ground for a divorce or dissolution is unchanged; the marriage or civil partnership must have irretrievably broken down. However, it is no longer necessary to satisfy the court that one of the Facts applies. A mere assertion that the marriage or civil partnership has irretrievably broke down is enough to obtain the divorce or dissolution.
It is now impossible to defend (i.e. contest) a divorce or dissolution application. In truth, it was regarded as virtually impossible under the old law, until the surprising decision in the case of Owens v Owens where the judge held that the husband’s behaviour did not justify a divorce. The Court of Appeal and Supreme Court upheld the judge’s decision, as it was a decision that was within the judge’s discretion to make. (Reading between the lines of the appeal judgments, I think you can tell that the appeal judges were sympathetic to the wife and that, if they had been the judge at first instance, they would have granted her a divorce). Such was the outcry about that frankly astonishing decision that the Johnson government successfully passed the Divorce, Dissolution and Separation Act 2020, introducing no-fault divorce and dissolutions.
The campaign for reform of the divorce law had been going on for decades. Proponents of the new law argued that fault-based divorce did nothing to save marriages or to reduce the divorce rate. They argued that the old law just gave the parties something additional to argue about and distracted them from resolving the more important issues about their finances and children.
Opponents of the new law argued that it would become too easy to divorce, and that divorces would rise. This completely overlooked the reality that it was already easy to divorce (you just had to be prepared to allege nasty things about the respondent). By the 21st century, pretty much nobody who was determined to get a divorce failed to get one (apart from Mrs Owens).
We have now had three years of no-fault divorce. The divorce rate has not risen, aside from a brief spike shortly after the law was included and which was caused by people who had been waiting for the new law to be introduced before starting the application.
There are, however, still those who argue that the situation has not been improved by the no-faulty divorce law.
On 10 April 2025, the Law Society Gazette marked the three year anniversary with an article in which a family law solicitor stated that he believed that as a result of being unable to make allegations in divorce applications, there were now more allegations made in financial remedy applications instead.
‘Previously, being able to apportion blame at the start of the process by citing a spouse’s adultery or unreasonable behaviour was important to many people on a psychological level, serving as a therapeutic step in the healing process. The removal of fault in the divorce regime, as a legal concept, is straightforward. However, removing it from the human psyche is far more complicated.”
‘In my experience, the new divorce regime has led to more spouses littering financial statements with allegations of bad behaviour which, invariably, have no impact or relevance on the financial settlement. This is happening more than we saw under the old system and it often fuels animosity, resulting, ironically, in increased costs and delays.”
I take his point, albeit that I am not sure that solicitors are necessarily qualified to voice opinions on psychological issues. It may be cathartic for parties to vent about their ex’s conduct, but if so, I don’t believe that the court is the right place to do it.
However, I do accept that occasionally I have clients who see allegations made about them in court applications and are frustrated that sometimes those allegations are not proved or disproved. Often the person against whom the allegation is made simply denies them and the court does not make a finding one way for another against them. These clients are frustrated at the loss of a dramatic moment in court where the other side is proved to be a liar and they are vindicated.
The reality is that in many cases, the allegations are not proved or disproved. In domestic abuse injunction cases, it is normal for there to be a non-molestation order and occupation order made in which the respondent denies the allegations, but does not contest the application. It is then made clear in the orders that there is no finding of fact against them. In other cases, such as financial remedy claims or child arrangements applications, the allegations are never addressed by the court, because the allegations are not deemed sufficiently serious or relevant.
Conduct allegations in financial remedy cases are often completely irrelevant. Section 25 (2) (g) Matrimonial Causes Act 1973 says that the court shall take into account “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. In most cases, it makes no difference, unless it has some financial relevance (e.g. squandering of assets or abuse that is so significant it affects a spouse’s ability to work). Other conduct allegations (e.g. that a spouse was unfaithful), are regarded as irrelevant.
Regrettably this does not stop people from filling in the conduct section in the Form E financial statement in financial remedy cases, despite the form making it clear that “Bad behaviour or conduct by the other party will only be taken into account in very exceptional circumstances when deciding how assets should be shared after divorce/dissolution”. It is depressingly common to find that this section has been filled with much irrelevance, sometimes even where the Form E has been drafted for that party by their solicitor. Litigants in person are particularly prone to completion of this section; they struggle to understand why conduct is rarely relevant.
The solicitor quoted by the Law Society Gazette does not appear to be an opponent of no-fault divorce, but this did not to stop the Christian Institute from citing his comments as evidence of why no-fault divorce is a bad thing as far as they are concerned. The Christian Institute insisted (which was firmly opposed to the introduction of no-fault divorce) quoted the Coalition For Marriage (C4M), a group that I have to say that I have never heard of before, as saying that adult children of divorced parents “often describe the lasting tug-of-war of living between two homes and the emotional fall-out that follows them into their own relationships”. C4M also claims that studies have reported that such children suffer worse physical health and emotional wellbeing than those of married parents.
Quite why that should make no-fault divorce worse than fault-based divorce, I cannot understand. The whole point of no-fault divorce is to decrease the potential for conflict. If the people in those studies were in England and Wales, they presumably experienced the effects of a fault-based divorce, not a no-fault based divorce. Why do the Christian Institute and C4M think that increased potential for conflict is a good thing?
It may be worth noting that C4M says that it will “continue to champion real marriage – one man, one woman, for life”. Clearly not the most progressive of organisations; it doesn’t appear to be in favour of divorce under any circumstances, or in favour of gay marriage either.
C4M claims (correctly) that government statistics show that divorce applications rose sharply by 22% during the first three months of no-fault divorce. The government statistics report says:
“Between April and June 2022 there were 33,234 applications made under the new law (78% from sole applicants, 22% from joint applicants) … There were 33,566 applications altogether made under both old and new laws. This was an increase of 22% from the same quarter in 2021 and represents the highest number of applications in a decade.”
This spike was expected and was not surprising. It then fell back to normal after all the people who had been waiting for the law to change had their applications underway. This was predicted by Professor Liz Trinder of the University of Exeter in her research into no-fault divorce as this is what happened in other jurisdictions when no-fault divorce was introduced. It was the result of people waiting for the law to change before starting the divorce. I can confirm that the number of divorce applications that I started during the months before the change in the law plummeted. Those clients were able to get divorced under the old law, but they recognised that no-fault divorce was better than fault-based divorce and preferred to wait for the new law to come into force.
C4M fails to point out the government statistics for the same quarter the following year say that “Between April to June 2023 there were 24,624 applications made (75% from sole applicants, 25% from joint applicants) …This was a decrease of 30% from the same quarter in 2022 where the new divorce law was first introduced [sic] and led to a surge of cases”.
Government Statistics for the same quarter during 2024 are not available due to data processing issues, but the stats for the following quarter state that that:
“Between July to September 2024 there were 27,003 applications made (74% from sole applicants, 26% from joint applicants)…. This was a decrease of 6% from the same quarter in 2023.”
These statistics don’t help C4M’s case and, not surprisingly, they are not cited by them. They and the other opponents to no-fault divorce always claimed that no-fault divorce would undermine marriage as it would make too easy. The numbers of people divorcing are still falling, and have been for 30 years – because fewer people are marrying in the first place. (See my blog here about a fall in divorces in 2022).
No-fault divorce has not led to a sudden decrease in hostility between parents in financial remedy claims and children disputes. Proponents of no-fault divorce may have been guilty of claiming that no-fault divorce would suddenly lead to a decline in disharmony between discording couples. It was never going to be a panacea. Nevertheless, I simply cannot accept that it has somehow made matters worse.
30 May 2025
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