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Divorce in England: 100 years of evolution

Divorce in England has evolved significantly in the last 100 years. Not only has it become more equal, less discriminatory, but it is now far less acrimonious following the introduction of no-fault divorce in 2022.

A little over a century ago divorce was particularly difficult for women who wished to end an unhappy marriage. Divorce in England was very much a privilege favoured to rich men. Even if you fell into that category, you still needed to prove adultery or violence to obtain a divorce. In the first decade of the 20th century, there was just one divorce for every 450 marriages.

The Matrimonial Causes Act 1923

In 1923 following the introduction of a Private Member’s Bill, The Matrimonial Causes Act 1923 was passed. This allowed women to petition for divorce on the basis of their spouse’s adultery. Prior to the passing of the 1923 Act, a woman had to prove adultery plus an aggravating factor (such as desertion of 2 years or the committal of a serious crime by the husband) in order to obtain a divorce.

The Matrimonial Causes Act 1937

The Matrimonial Causes Act 1937 allowed women to petition for divorce on the same terms as men for the first time. It extended the grounds for divorce to include desertion for over three years, cruelty, drunkenness, and incurable insanity, although there was a bar on petitions for the first three years of the marriage.

Despite the evolution of divorce in England by the introduction of the 1937 Act, divorce was still expensive, and was out of reach for many people, particularly women.

The Divorce Reform Act 1969

The ground-breaking Divorce Reform Act 1969 was the first introduction of a type of no-fault divorce by introducing the concept of “irretrievable breakdown” and removing the concept of the “marital offence”.

The Act evolved and extended divorce in England by allowing couples to divorce after they had been separated for two years, or five years if only one of them wanted a divorce (the no-fault elements).

The previous grounds of adultery and desertion could also be used as evidence of the marriage breakdown.

As the Act removed the concept of the marital offence, the old 1937 ground of cruelty was labelled as “unreasonable behaviour”.

The passing of the Act allowed people to divorce with less stigma and pain.

The Matrimonial Causes Act 1973

Following a sharp increase in divorce rates following The Divorce Reform Act 1969, new legislation was introduced in the form of The Matrimonial Causes Act 1973. This Act remains the foundation of the current law relating to financial matters arising from divorce in England today.

The Matrimonial Causes Act 1973 consolidated the laws from the Divorce Reform Act 1969 and stated that a couple had to be married for three years before applying for a divorce. This was later amended and reduced to one year in 1984.

The Matrimonial Causes Act 1973 introduced a single ground for divorce, namely the irretrievable breakdown of a marriage which had to be proven by one of five facts:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years separation by consent
  • Five years separation (without consent).

Although the concept of the “marital offence” had been removed by the 1969 Act, it was still necessary to prove fault by alleging one of the above 5 facts to demonstrate why the marriage had broken down.

Marriage (Same Sex Couples) Act 2013

In 2013, Parliament passed the Marriage (Same Sex Couples) Act which introduced civil marriage for same-sex couples in England and Wales. It is incredible to think that only 90 years earlier it was incredibly difficult for women to have the same rights as men to divorce. The new Act provided full legal equality for lesbian, gay and bisexual people.

David Cameron, prime minister at the time, wrote in Pink News that the reform was necessary because “when people’s love is divided by law, it is that law that needs to change. The introduction of same-sex civil marriage says something about the sort of country we are. It clearly says ‘you are equal’ whether straight or gay. That is so important in trying to create an environment where people are no longer bullied because of their sexuality – and where they can realise their potential.”

The legislation also enabled civil partners to convert their civil partnership into marriage and transsexual people to change their legal gender without necessarily having to end their existing marriage.

The first same-sex ceremonies took place in England and Wales on 29 March 2014. 

In 2018, a case came along that changed divorce in England.

The case of Owens v Owens intensified the argument for divorce reform and, in particular, no-fault divorce after the Supreme Court dismissed the wife’s appeal of a lower court’s refusal to grant her a Decree Nisi following the husband’s defence of her Divorce Petition where he disputed the 27 allegations of his “unreasonable behaviour”.

The wife’s divorce petition had previously been rejected by the High court and the Court of Appeal, where she was told that her husband’s behaviour was “to be expected in a marriage” and that “parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”.

Lord Wilson in the Supreme Court said “there was no denying that Mrs Owens’ appeal generates uneasy feelings’…. Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above”.

After nearly 100 years following the 1923 Private Members Bill was introduced, Baroness Butler-Sloss introduced another Private Members Bill in the House of Lords requesting the Lord Chancellor to review the law on the ground for divorce and civil partnership dissolution in England & Wales which led to…

The Divorce, Dissolution & Separation Act 2020

In April 2022, The Divorce, Dissolution & Separation Act 2020 came into law, and represented the biggest reform in divorce in England and Wales for more than half a century.

The main reforms were the removal of the ‘fault’ or blame element in the divorce process. It ended completely the need for separating couples to apportion blame for the breakdown of their marriage and replaced it with only one ‘ground’ for divorce under English law: that the marriage has irretrievably broken down.

It was felt that the old divorce system effectively required couples to be the opposite of amicable and apportion fault or blame to obtain a divorce. This caused unnecessary conflict, bitterness, and distress.

As a direct result of the Owens case, the Act stopped one partner from contesting a divorce and locking their spouse into an unhappy marriage. The Act also introduced the concept of a joint divorce application. This allowed both parties to a marriage or civil partnership to apply for a divorce/dissolution together (an amicable divorce).

The key intentions of introducing the joint divorce application were as follows:

  • To make divorce in England more amicable – Joint proceedings reflect the fact that a couple both agree that the marriage has irretrievably broken down.
  • To make divorce easier and quicker – By applying for a divorce/dissolution jointly, a couple can navigate the divorce process together. With mutual cooperation and agreement, couples can achieve a divorce without in about 6 to 7 months.
  • To remove the surprise element – As both parties are aware of the divorce from the outset, there are no nasty surprises.
  • To make it less stressful – A couple can proceed when they both feel ready – allowing them time to emotionally prepare.
  • To make divorce less acrimonious and traumatic – As both parties are jointly involved and have chosen to divorce together, they can focus on the future, and not on the past.
  • To make divorce far cheaper and accessible – Couples can now divorce by using the same divorce professional, meaning there is only one legal cost involved (instead of the need to pay two separate legal fees by using two lawyers).

The future…

Despite the significant changes made to divorce in England in the last century by the introduction of no-fault divorce, the law relating to financial matters arising from divorce is lagging far behind.

Fifty years have passed since the passing of the 1973 Act, but Judges are still dividing finances following a divorce using an old law when social norms and marriages in England have greatly changed.

In 1973, the average house price was £9,900, and the average annual salary was £1,539. Today it is considered normal for a household to be a two-income household.

In 1973, life expectancy for women was 75.5 years and for men 69.3 years. Today people are marrying later, divorcing later and end working later.

The main problem with the current law is that there is no formula or obvious outcome for dividing assets on divorce. This leaves Judges with a great deal of discretion about how to deal with assets on divorce, based on several factors and what they consider is “fair”.

Accordingly, the Government has asked the Law Commission to review whether the current law is working effectively and delivering fair and consistent outcomes for divorcing couples.

In particular The Law Commission will consider the need for reform in specific areas, such as:

  • the discretionary powers given to judges over the division of financial assets, and whether there is a need for a clear set of principles, enshrined in law, to give more certainty to divorcing couples.
  • whether there should be wider powers given to the courts to make orders for children over the age of eighteen
  • how maintenance payments for an ex-spouse or civil partner should work.
  • what consideration the courts should give to the behaviour of separating parties when making financial remedy orders
  • orders relating to pensions and whether they are overlooked when dividing the divorcing parties’ assets.
  • the structure of the system for making regular financial payments from one person to another after divorce
  • the factors judges must consider when deciding which, if any, financial remedy orders to make.

The Law Commission has started preliminary work on this project, with the aim of publishing a scoping paper in September 2024. Time will tell as to what further evolutions will be made.

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