Queen Elizabeth is said to favour an agreed separation before royal divorce, advice three of her four children duly followed as their marriages unwound. They needed to do so because English courts require proof of a marriage irretrievably breaking down before they will grant a divorce, even to members of the royal family. This means couples have to prove adultery, desertion or otherwise unreasonable behaviour to legally end their union. The only other option is to show they have separated for at least two years; the more decorous option that comes with a royal stamp of approval.
Until now. The biggest shake-up of divorce laws in 50 years in England and Wales (Scotland and Northern Ireland have different legal systems) means this archaic “blame game” — part of English divorce law since 1660 — will finally be replaced with no-fault divorces, as is the norm in other jurisdictions across the world, including Canada, Australia, the United States and China. Currently, fault is cited ten times more in divorce petitions in England than in France. An overhaul is a welcome and overdue step that should save money, time and most of all acrimony for couples.
As part of the reform that takes effect in April, the government is removing the ability for one party to contest divorce proceedings, in most cases. This should prevent situations such as that of Owens vs Owens, where the Supreme Court, “with reluctance”, ruled in 2018 that Tini Owens could not divorce her husband of 40 years, Hugh, as she had not proved his behaviour unreasonable enough, and he did not want to end the marriage. The courts have no place in 2022 in telling one unhappy party that they are not miserable enough and should remain bound to another. Tini was finally granted her divorce after five years of separation required in contested cases.
While a two-year agreed separation may seem a reasonable strategy that already circumvents the need for blame, many cannot afford to maintain two households before a financial settlement is agreed. No-contest divorce should also assist those in abusive marriages who fear their spouse would fight divorce as part of a pattern of control. Domestic violence decreased by around a third, and the murder rate of women by partners by about 10 per cent, in states with no-fault divorce in the years after Ronald Reagan, as governor of California, introduced the first US no-contest divorce in 1969, according to academic research.
The study also showed that while there was a rise in petitions following the advent of no-fault divorces, the rise was transitory and dissipated over time. This should alleviate concerns that no-fault divorces could prompt a spike in the number of marriages ending, the erosion of family values and its effect on children. Besides, an antiquated law that emphasises fault also has detrimental consequences.
There are spouses who want to lay blame as their union deteriorates. But this ultimately garners no favours in court, where events that lead to a marriage’s breakdown, unless particularly egregious, have little bearing on the division of assets or future childcare arrangements. A system that emphasises pointing the finger in order to legally end a marriage therefore makes little sense. Meanwhile, there are no plans to change a system that almost always shares wealth equally upon divorce, even when it has been largely built up by the breadwinner. That should mean London remains the divorce capital of the world for those seeking to end their marriages to princes, potentates and private equity titans — for better or for worse.