The biggest change to divorce laws in the past 50 years will take place on 6 April 2022. From this date, married and civil partnership couples can obtain a divorce without having to “blame the other”, under the Divorce, Dissolution and Separation Act 2020 – commonly referred to as no-fault divorce. No-fault divorce has been highly anticipated in the UK for a considerable time. It is hoped that these changes will bring positives to many separated couples but one of the things that has played most on people’s minds is how this change will affect those that have been the victims to perpetrators of domestic abuse.
The no-fault divorce movement was sparked by the very high-profile Owens v Owens case in 2018. Mrs Owens was essentially trapped in her marriage as the trial judge rejected her reasons for wanting to be divorced from her husband, on the basis that there was not sufficient evidence of unreasonable behaviour. As a result, she had to wait 5 years to be allowed to begin divorce proceedings because her husband would not agree to the divorce. This case resonated with hundreds of women trapped in abusive and unhappy marriages.
It was claimed by Rights of Women, a charity organisation purposely built to assist women through the law and aim to achieve equality, justice and safety for all women in the law, that the current divorce law was “not fit for purpose”. They, along with many others, have argued that a reform in divorce law has been long overdue. They found that many victims of domestic abuse were unable to officially separate from their partners when the perpetrator did not want to wait for a period of two or five years. The only other option that was then available to them were the grounds of unreasonable behaviour or adultery which were the fault-based facts which often led to further hostility between the parties and risk of abuse when they remained living in the family home. This also gave the perpetrator an additional avenue to control the victim.
Research has highlighted that the fault-based system that was currently in place kept women who experienced domestic abuse in a marriage for longer than they would have stayed had there been an alternative way to divorce.
At Stowe Family Law, we have recently conducted a survey of 400 people across the UK on no-fault divorce. 72 per cent of respondents believed that the reason for divorce was due to one party doing something (or various things) wrong. Whilst this is not always the case, for those living with the reality of domestic abuse within their marriage, proof is often very difficult to lay down concretely. Women tend to be the primary instigators of divorce proceedings (67 per cent) but the law often fails them, demanding examples or evidence of abusive behaviour that many are too afraid to recall.
The necessity of not only raising awareness, but actively introducing laws to fight sexual abuse and violence is especially poignant, with statistics that one in four women suffer domestic abuse at some point during their lives, and domestic abuse has a higher rate of repeat victimisation than any other crime. Meanwhile, two or three women are murdered each week by their partners or ex-partners in England and Wales. It can be easy to forget that over 845,000 people in the UK are trapped in abusive relationships, according to the latest ONS figures – a number that continues to rise every year.
In addition to this it is believed that the current divorce law was discriminatory against women and had a disproportionately negative effect on women who had experienced domestic abuse. There was also a strong tie to those that were on a low income.
The 1990 Law Commission report The Grounds for Divorce pointed out that “a young mother with children living in a council house is obliged to rely on fault whether or not she wants to do so and irrespective of the damage it may do.” It was clear from this report that a large amount of the population was affected, especially those that were unable to leave the family home due to being on a low income and therefore having to remain living with their perpetrator during the proceedings. Unfortunately, it is a common fact that divorce only increases tension and hostility between parties for those going through the proceedings.
When using the ground of unreasonable behaviour in a fault-based petition, petitioners have to give the reasons for the breakdown of the marriage. For victims of domestic abuse they would have to make the decision as to whether they detail this abuse as a “reason”, knowing the risks involved which could be as serious as their lives. If they decide to proceed on this ground the perpetrators had the opportunity to contest and defend the divorce, resulting in the victim having to attend court unnecessarily and “face” their abuser, placing immense pressure on the victim. This was seen to be further abuse to the victim and something that the Court attempted to change. For this very reason, a significant number of victims end up accepting facts about themselves which were not necessarily true, to get divorced and escape their abuser.
For these reasons the divorce petition itself is rarely used as a form of evidence in any other type of family law proceedings, as the Court is aware that respondents are often accepting petitions based on their own unreasonable behaviour, in fear that any retaliation to defend this petition may put them at further risk from their abuser. This is both unethical and wrong.
Reducing the risks
The divorce process itself is highly emotional for all parties involved. The fact that many victims know that there are additional hurdles to overcome in addition to those set out by the Court can be simply overwhelming.
It has been argued that this reform will bring positives in that neither party will have to evidence that they are entitled to a divorce and to instead allow the parties to proceed on a no-fact/no fault basis.
Introducing the no-fault divorce should bring an end to the “blame game”, allowing parties to divorce without blaming the other party and relieving the risk of further animosity and acrimony. These changes will make a significant difference to victims of domestic abuse, which is long overdue. Soon the “fault divorce” will be a thing of the past and it is hoped that the statistical figures will evidence that this will be one of the greatest changes to the divorce law reforms that has ever taken place.