Your fault, my fault, our fault, no fault? English fault-based divorce, current proposals and the alternative New Zealand model
By Tom Gilchrist
Legal problems pertaining to divorce have recently resurfaced into the public spotlight following the case of Owens v Owens  UKSC 41. Mrs Owens married Mr Owens in 1978 and had two children, both of whom were adults when Mrs Owens petitioned for divorce in May 2015. Her petition fell under s 1(2)(b) of the Matrimonial Causes Act 1973 (under the laws of England and Wales). Her petition clarified that her marriage had irretrievably broken down and that Mr Owens actions had made it unreasonable for her to live with him. However, since Mrs Owens failed to satisfy the test set out by the High Court, the Court of Appeal and the Supreme Court, she remains married to Mr Owens.
New Zealand has a ‘no-fault’ divorce model based on being separated for two years, with limited grounds to contest. The Ministry of Justice also recently convened a consultation on divorce and made proposals including doing away with the fault-based system and removing the ability to contest. While there are arguments for a fault-based system, the New Zealand system and the Ministry of Justice proposals, this short article recommends the adoption of a modified version of the New Zealand system in the United Kingdom.
- English Law
In England,divorce is governed by the Matrimonial Causes Act 1973 (‘MCA’). In effect, if a person would like a divorce, they must satisfy one of the following conditions: having been cheated on;having a spouse who is so unreasonable that they cannot be reasonably expected to live with them; having lived apart for two years and willingly consented to divorce; havingbeen abandoned for two years, or having lived apart for five years.Apart from consent after two years, or waiting five without it, the grounds of divorce in England require fault.
Owens v Owens
Mrs Owens’ divorce petition was based on s 1(2)(b) MCA, alleging that Mr Owens behaved in such a way that she could not be reasonably expected to live with him.Mr Owens defended this petition on the grounds that the marriage had not broken down and that he had not acted so unreasonably that Mrs Owns could not live with him. As evidence, Mrs Owen alleged 27 individual incidents demonstrated her spouse’s unreasonableness. These included Mr Owens being moody and argumentative and disparaging her in front of others. There was in effect no evidence on the content of the marriage prior to two years before the petition.
The Judge who heard the petition found that while the marriage had broken down, the complained incidents were individual incidents, were flimsy and exaggerated and that it was not unreasonable for her to be expected to live with Mr Owens. On appeal to the Supreme Court, the court noted that defended divorces are rare and that most petitions under s 1(2)(b) MCA are successful.
The court held that the inquiry to follow for the sub-section was:
- By reference to the allegations of behaviour in the petition, the court is to determine what the respondent did or did not do;
- The court then assesses the effect on which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred; and
- then make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner an expectation that the petitioner should continue to live with the respondent would be unreasonable.
Regardless of the clarification of the law, Mrs Owens remains married to a man she took all the way to the Supreme Court in an attempt to sever her legal ties with all because Mrs Owens did not, in law, behave in such a way for her not to be reasonably expected to live with him. He has, in effect, forced her to stay married to him by refusing to consent to the divorce. Thus, she will have to remain married to him unless he changes his mind or until five years have elapsed since their separation. Only until such time has passed, can Mrs Owens to file a petition without his consent under s 1(2)(e).
2. The New Zealand Position
Divorce in New Zealand is significantly different.It is governed by the Family Proceedings Act 1980 (‘FPA’). If the dissolution application is undefended and granted by a judge, it takes effect immediately. If defended or granted by a registrar, it takes effect after one month.To get a divorce in New Zealand one must prove that the marriage has broken down irreconcilably. To give effect to this, it must be proven that the couple have lived apart (ie have been separated) for two years. There is even case law holding that the parties to the marriage can physically live in the same premises and still be ‘living apart’.
In McBride v McBride, a couple were held to be living apart when, amongst other circumstances, the wife moved to the back of the house (which had a separate entrance) and also installed a separate phone line.InRHD v MOD, it was enough when combined with other factors, for the couple to have moved into separate bedrooms, along with the wife demanding a lock on her bedroom door.The only way to stop a divorce is counter-evidence to the time of separation or that there are inadequate arrangements regarding childcare, if there are children of the marriage. There is no need for consent and no need to prove that there was been unreasonable behaviour. In other words, there is no need for fault.
3. Divorce Statistics
In 2017, New Zealand had a divorce rate of 8.4 per 1000 existing marriages.The FPA came into effect in October 1981. In 1980, the rate was 9, in 1981 it was 11.9 and in 1982, it spiked to 17.1. The increase could be due to the fact that those who had wanted or needed divorces, and previously could not meet the earlier fault-based test for divorce, could now finally get one because of the time-based model of divorce. Since the 1982 spike, the number of divorces has been decreasing overall, returning to the pre-fault-based divorce era rates. If the introduction of ‘no-fault’ was to ruin the institution of marriage and allowing many to obtain an easy and quick divorce, logically, the divorce rate would have further increased or stayed at the peak rate.
In 2017, England had a divorce rate of 8.4 per 1000 existing same-sex marriages. This is the lowest rate since 1973, and around 40% lower than their peak in 1993.One might argue that there is no need for a change to the law as the rates are essentially the same in the two jurisdictions. However, the rate does not take into account personal factors, like how acrimonious a split was due to the law.
4. English Proposals for Reform
From September 2018 to December 2018, the British Ministry of Justice held a consultation regarding potential reform of the law of divorce.The Government proposed to remove requirement of evidence that the marriage has broken down irretrievably. The suggestion would be replacing it with a notification-based system, where an application is made by a single party (or both parties) stating that the marriage had broken down irretrievably. A provisional decree of divorce would be granted, and the other party would be notified of the application.This proposal would also remove the five ‘facts’ of s 1(2)(a)-(e) MCA. The divorce then could be made final at a later date. The Government also proposes to remove the opportunity to contest, and instead to include a minimum time frame between the provisional decree of divorce and final decree of divorce.
5. Arguments for the Fault-Based Divorce Model
There are a number of arguments to retain the current English model. Some argue that it would damage the sanctity of marriage to allow for easy divorces. Proponents of this argument state that marriage is a serious institution, so it should be a serious process to end it. However, while it is a serious institution, it is an institution that is very easy to enter into, so it does not follow that it should be difficult to exit it.
Another argument is that if it is ‘easy’ to divorce, couple may just enter marriage without thought as to the practical and financial implications of the institution. It does seem unlikely that people take into consideration the ability to divorce when deciding to marry, as that is not really part of the natural thought process. While people may make pre-nuptial agreements in the event of divorce, I contend that most parties to a marriage do not plan an escape route and foresee the resulting consequences when they divorce in a fault-based jurisdiction. It is also argued that no-fault divorce would allow for couples to divorce as soon as there is trouble in the marriage instead of taking time to repair it. While there may be some truth to this, s 3 MCA already prevents a petition being filed in the first year of marriage and the New Zealand model requires two years of separation. If a marriage cannot be saved within two years, it seems unlikely that it can be saved with more time.
6. Arguments for the New Zealand Time-Based Model
It is argued that this model can make divorces less acrimonious. In the English model, blame must be attributed. This normally inflames the split and make childcare and financial issues harder to agree on. The Law Society has noted this and advises solicitors to draft petitions alleging unreasonable behaviour to include only brief details, sufficient to satisfy the court.Adopting the New Zealand model can also stop the ability of spouses using divorce like a weapon; refusing to give consent to a divorce could be used to hurt a partner, to spite them or as leverage for something. One might argue that almost all divorces are granted, so there is no point in changing the law. However, that does not seem like a good enough reason. For the few divorces that are contested, it can be an acrimonious nightmare. Acrimony could be increased as, with one party having to be ‘at fault’, many may not want to admit that they are the reason for the end of the marriage. People like Mrs Owens fall through the cracks of a fault-based system. If people do not have to jump through hoops to get married, then there is no good reason as to why the state makes it hard for them to cut the legal ties that bind them.
7. Arguments for the Government’s Proposals
There is significant merit in the Government’s proposals. The removal of the ‘five facts’ will mean there will be no need to allege unreasonable behaviour or adultery. The removal of the ability to contest a divorce would remedy the problem Mrs Owens faced. This also would likely make the process more amicable and less acrimonious by removing the need to force one of the parties to allege fault by the other party. If one party no longer wishes to be party to the marriage, the proposals allow them an easy way to get a divorce. The six-month minimum period between the provisional and final divorce orders allows the couple time to reconcile. However, six months could be seen as an insufficient amount of time to allow for reconciliation. It also could be argued that getting a divorce in six months devalues the institute of marriage. Another criticism is that there is no current proposed prelude to the notification system. Without the requirement of a prior separation, a party could potentially be blindsided by an application for divorce.
Overall, it seems that a general consensus exists in favour of changing English divorce law. The question is: what into? The New Zealand model seems to be the best option in principle. Its required separation period gives the parties an opportunity to reconcile and salvage the marriage, if it is possible. However, some might argue that parties would try to mend the marriage before separating, and that two years are too long. It also seems unlikely that problems which could not be solved in one year, would be solved in the second. While there may be matrimonial property issues, in New Zealand, the property pool crystallises on the date of separation, not of divorce.
The problem with the current UK Government proposal is that people could be potentially blindsided by an application for divorce. A separation period before notice, as in New Zealand, seems like the best option to prevent this and to give the couple an opportunity for reconciliation. In contrast to what is currently proposed by the UK Government, it seems prudent to allow for a reconciliation period before the preliminary decree of divorce is issued, as some couples may not bother to attempt to resolve their differences after the initial divorce order has been made.
I therefore recommend a system in England similar to the New Zealand system. The parties’ marriage would need to have broken down irretrievably. This would be proven by the parties living apart for 18 months, which would facilitate reconciliation and settling property disputes and childcare, and also provide a de facto notice period for all but the extreme cases, such as inRHD v MOD.
This article was published in July 2019.
Please consider all references to England as meaning England & Wales, unless context requires otherwise.
Although it is only adultery if it is with someone of the opposite sex, per s 1(6) MCA.
Matrimonial Causes Act 1973, s 1.
 UKSC 41 
Matrimonial Causes Act 1973, s 1(2)(e).
There is technically no such thing as divorce in New Zealand; it is a dissolution of marriage. The word divorce is used for ease of comparison.
Family Proceedings Act 1980 (NZ), s 42(1).
McBride v McBride NZFLR 651.
RHD v MOD NZFC 3932.
Office for National Statistics, ‘Divorces in England and Wales 2017’ 26 September 2018 <www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2017>accessed 17 December 2018.
Ministry of Justice, ‘Reducing family conflict: Reform of the legal requirements for divorce’ September 2018.
Family Law Protocol, 4thEdition (2015), [9.3.1].
Or irreconcilably, as in New Zealand. The nomenclature does not seem important on this point.