From Fault to Fairness: Reflections on Divorce Law

One of the most significant changes in divorce law in my career came about on 6th April 2022 with the introduction of ‘no fault’ divorce.  I was starting to wonder whether I would ever see this change during my career.  When I began my studies in the 90s, the campaign for change was already in place. I have contributed in a small part to the change by focusing on amicable resolution to divorce, separation and child issues over the past 25 years.  

I practised as a Mediator for many years and now encourage my clients to consider the Separate Together pathway. This pathway, offered by Nantes, allows one lawyer to provide joint advice to couples considering divorce, separation or child arrangements. The change in the law has been fundamental in removing blame from divorce, with the hope that couples can focus on amicable solutions to their finances and child arrangements.  

In preparation for a recent team training day, I looked back at the history of divorce in this country, and it was fascinating.  Prior to 1857, it was only possible to divorce via a private Act of Parliament, which meant it was only available to the very wealthiest of people in society.  The only ‘ground’ of divorce was adultery, and it also favoured men as women also had to prove ‘life-threatening cruelty!’  It wasn’t until 1923 that the requirement for women to prove an additional aggravating factor was removed from the law.  Divorce law remained the same until 1969, although in the 1920s it was made more accessible through the introduction of legal aid.  

The Divorce Reform Act 1969 was a major change in divorce law and remained the basis for divorce until 2022.  It introduced the sole ground of ‘irretrievable breakdown’ of the marriage, which had to be proven by a ‘fact’ which was either behaviour, adultery or living apart for a period of time.  (Many of my past trainees will no doubt have in mind me telling them off if they referred to ‘grounds of divorce’. “There is one ground and five facts” was my mantra!).  

The majority of my career was therefore spent discussing with clients what behaviour of their spouse was ‘enough’ for a divorce petition or explaining that, unless the spouse admitted adultery, it was very hard to prove!  Looking back, when trying to promote amicable resolutions to separation, it was never ideal to have to start on this basis, and it is hard to see how it took 53 years to bring about change.  Having worked with the no-fault divorce now for 3 years, behaviour and adultery are a distant memory, although some clients do still say “it’s not fair, he/she is to blame!”