The New Divorce Law vs Domestic Abuse 

The landmark case of Owens v Owens [2018] UKSC 41 initiated drastic change in family law of England and Wales. As a result, new legislation came into force in April 2022. When filing for divorce, the ‘applicant’, who is the individual applying for the divorce, is no longer required to prove any of the five ‘facts’ as previously mandated. These were adultery, unreasonable behaviour, desertion or separation. The new law allows couples to separate without having to give any reason at all for the breakdown of their marriage. The aim of this is to make divorce proceedings a much faster process and to take the heat out of the proceedings.

The main changes: 

1. Individuals only need to produce a statement of irretrievable breakdown (a reason for the divorce without blaming the other spouse),
2. An application for divorce can be made jointly or by a sole applicant,
3. The option of contesting the divorce is removed, 
4. ‘Decree Nisi’ became ‘A Conditional Order’,
5. ‘Decree Absolute’ became ‘A Final Order’,
6. There is a 20-week period of reflection, between the application and Conditional Order.

If the statement of irretrievable breakdown is filed by just one person, the other no longer has the opportunity to defend the divorce. Once the statement has been filed, there is what is called a ‘cooling off’ period of 20 weeks until the making of a conditional order can be made. Critics are saying this 20-week period is much too long in cases where domestic violence is present and are calling for it to be shortened. The previous law did not require this period of time therefore, one may question why the updated law has included it. Academic research has shown that jurisdictions that have adopted the no-fault divorce system have not seen a rise in divorces as a result. Therefore, the need for the cooling-off period is somewhat diminished. 

How has the ‘no fault’ divorce affected victims of domestic abuse? 

Domestic abuse is defined by the Government as ‘any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.’ It is a very present problem, and it is essential that sufferers of domestic abuse are able to find safety as soon as possible. Statistics show that the new legislation has contributed to a fall in domestic abuse of roughly 30% and a decrease of 8% in suicidal rates of victims of domestic abuse (Domestic abuse in England and Wales: figures on domestic abuse from the Crime Survey for England and Wales). 

The previous, lengthy fault-based divorce procedure, and the need to prove a fact, gave perpetrators a lot of time to continue to control and abuse their partner. Those subjected to abuse are now no longer required to evidence the abuse they suffered, to then be told that the evidence is not sufficient to show ‘unreasonable behaviour’, as in Owens v Owens. In such circumstances, wives or husbands no longer have to stay in their marriage for two or five years until they are able to achieve a divorce.

The new legislation has given those subjected to domestic violence the ability to get out of their marriage as quickly and as easily as possible. However, we appreciate that the legislation is a much-needed and welcomed change, but there are, perhaps, further changes that need to be implemented, such as a reduction of the 20-week ‘cooling off period’, so as to make it even simpler and quicker for couples, in these circumstances, to get a divorce. 

Unfortunately, sometimes, when a divorce has been finalised, this does not mean that the abuse ends. In these circumstances, sufferers can apply for injunctive relief to protect them from further abuse.  At Blanchards Law, we are accustomed to dealing with such volatile situations and will be able to assist you in such matters if you require. 

If you feel that you would like to initiate divorce proceedings and/or that you are a victim of domestic abuse, please do not hesitate to contact us and speak with one of our sympathetic and knowledgeable solicitors who would be happy to assist you in finding a way forward.