Has the Time Finally Come for 'No Fault' Divorce?

In an important decision, the Court of Appeal has called upon Parliament to consider the introduction of ‘no fault’ divorce that does not depend upon either unreasonable behaviour or years of separation. The Court made its comments in the case of a pensioner who objected to being locked into a loveless marriage.

The Matrimonial Causes Act 1973 enables divorce petitions to be granted in cases where marriages have irretrievably broken down. That is deemed to have occurred in cases of adultery and where one party to a marriage cannot reasonably be expected to live with the other due to the latter’s unreasonable behaviour. Where there is no such fault, divorces will be granted only after two years of separation, with the consent of both parties, or after five years if such consent is not forthcoming.

In the case in question, a woman in her 60s had petitioned for a decree nisi following the breakdown of her 37-year marriage. She argued that her husband had behaved unreasonably in various ways, including disparaging her in front of her friends and family. Her petition was, however, rejected by a judge on the basis that she could reasonably be expected to continue living with her husband. Her criticisms of his conduct were exaggerated and flimsy at best, the judge found.

In rejecting her challenge to that ruling, the Court could find no flaw in the judge’s assessment of the evidence or his approach to the law. It reached that conclusion with no enthusiasm, however, and observed that the marriage was clearly over and that the wife had been left in a very unhappy position. She would be approaching 70 before she would be able to obtain a divorce under the five-year separation rule.

In its judgment, the Court questioned whether the time had come for the introduction of a broader category of no fault divorce. It noted that, of almost 114,000 divorce petitions issued in the year to January 2017, only a trivial number – about 0.015 per cent – were actively resisted. Given that minutely small number of cases, it was hard to see why an insistence on proof of fault remained necessary.