Advice Centre
No-fault divorce in England and Wales, is it ahead of the curve?
The biggest change to divorce law in 50 years came into effect in England and Wales on 6th April 2022 with the introduction of no-fault divorce. Formerly, family law practitioners attempted to take the heat out of acrimonious proceedings by encouraging their clients to take a more conciliatory approach or using anodyne examples of unreasonable behaviour in divorce petitions.
Following the case of Owens v Owens, in which the examples of the petitioner’s husband’s behaviour were considered to be too mild by the court, there followed an arduous period where practitioners encouraged clients to inflate their examples of unreasonable behaviour to avoid such a predicament.
Over the years, proposals for a no-fault divorce system were repeatedly considered by successive governments who preferred to maintain the status quo. However, following the Owens case in 2018, the Supreme Court asked Parliament to intervene and reconsider the law. But what about other jurisdictions? Is England and Wales a frontrunner in the no-fault divorce race?
Malta, China, Canada and Australia are just a few of the countries where no-fault divorce is part of the legal system. California, for example, was the first US state to allow no-fault divorce, which has been in place since 1970. Here, before no-fault divorces, spouses could, and did, easily make false allegations about the cause of the divorce. The spouse making those allegations could then gain a financial advantage, whilst the falsely accused spouse was punished financially and reputationally. With the introduction of no-fault divorce, it placed spouses on level ground and enabled them to keep the reason for the divorce private.
Of the 50 US states, 17 allow no-fault divorces, and in the 33 that remain, spouses can file for a no-fault divorce or choose to apportion blame, reasons for which vary between states.
What is clear in all these jurisdictions is that there has been a move away from the state as the judge of whether a marriage should be dissolved and towards an approach that supports marriage as a partnership based on consent. Therefore, if one party to the marriage removes consent, it should be ended. In legal terms, this is a practical move toward an administrative approach with no or minimal scrutiny against extrinsic standards, such as fault.
In Germany, Colorado and California, applications for divorce are seen as conclusive proof of the breakdown of the marriage. However, it is still possible to contest a divorce because of the lack of jurisdiction, validity of the marriage, fraud/coercion and procedural compliance. Such challenges are not about whether the grounds for divorce have been satisfied but that there is no marriage to dissolve, or the court has no right to dissolve it.
In Spain, Sweden and Finland, respondents can informally indicate their opposition to the divorce petition by how they complete the forms, although this has a purely symbolic effect.
None of them has specific provisions to allow the respondent to register their wish to remain married.
No fault divorce has been available in France since the 1970s and is the most popular method for divorce (over half, according to official statistics). However, France went further than England and Wales and, in 2016, legislated that for non-contested cases, couples were no longer required to attend any form of hearing or involve the court at all. Rather, the couple, together with their legal advisers, draw up an agreement which a notary then approves.
Despite some overlap between jurisdictions, there are many reasons other countries, such as Australia, Canada, France and parts of the US, are not as desirable to start a divorce to some individuals as the UK. London’s attraction is its worldwide reputation for awarding generous payouts to the financially weaker spouse, predominately women. Typically, awards made in other jurisdictions tend to be more limited. Judges in England and Wales have generous discretion when deciding how matrimonial assets should be shared.
Prompt action to start divorce proceedings in someone’s preferred country is vital because it is hard to switch to another jurisdiction after the process has begun. Wealthier clients with complex financial arrangements and who have ties to more than one country often have more choice about where to divorce. Someone who lives in Germany, for example, but was born in the UK and operates out of France might file for divorce in any of those jurisdictions.
However, there are traps. For most European countries, the criteria for filing for divorce include having a physical presence within that country for a specific period before beginning any proceedings. Even if a spouse files for divorce in one jurisdiction, it doesn’t necessarily mean the case will be heard there. Within no-fault divorce, a jurisdictional issue is one reason an application can be challenged, and it is not uncommon for spouses who do not wish to be divorced in England or Wales.
Expert International Divorce Law Solicitors in the UK
Our specialist Family Law team conducts cases with international elements, particularly cross-border divorce matters involving divorce proceedings in the UK where one party may have an international connection. Perhaps you are a French or German national living in England, and you are considering a divorce in the UK or have received court papers from the UK, you should take advice at the earliest opportunity and speak to our top-rated Family Law team today by calling 0330 107 0107 or request a callback.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
