Authored By: Sienna Louise Warren
Aston University
Owens v Owens[1] exposed widespread criticism of the fault based divorce system in England and Wales after Mrs Owens was denied a divorce despite the evident breakdown of her marriage. The decision underlined an increasing tension between modern social attitudes toward marital breakdown and the restrictive process of divorce law under the Matrimonial Causes Act 1973[2]. In response to growing criticism that the law encouraged unnecessary hostility between separating couples, Parliament introduced the Divorce, Dissolution and Separation Act 2020[3], which came into force in April 2022 and established the system of no fault divorce.
Before the reform, parties seeking a divorce were required, under section 1(2) of the Matrimonial Causes Act 1973[4] (MCA), to prove one of five facts demonstrating the irretrievable breakdown of the marriage, often relying on allegations of adultery or unreasonable behaviour. Critics contended how this framework intensified emotional conflict, damaged co parenting relationships and failed to reflect the realities of modern family life[5]. The new system of no fault divorce aimed to reduce antagonism by removing the need to assign blame and by encouraging a more constructive approach to separation[6].
This article argues that although no fault divorce has reduced procedural hostility within the divorce process itself, the reform has not eradicated conflict in family proceedings more broadly. Financial disputes, disagreements concerning children and the emotional consequences of relationship breakdown continue to generate significant adversarial tension between separating parties.
To evaluate this argument, the article first examines the operation and criticisms of the former fault based system before analysing the reforms introduced by the 2020 Act. It then assesses whether no fault divorce has genuinely reduced conflict in practice and considers the continuing limitations of the modern framework.
The Legal Framework of Divorce in England and Wales
Prior to the introduction of no fault divorce, the legal framework governing divorce in England and Wales was primarily contained within section 1 MCA[7]. Despite the primary ground for divorce was the irretrievable breakdown of the marriage, petitioners had to establish this by proving one of five factual bases: adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation without consent[8]. The strict interpretation of these requirements was later reinforced in Owens v Owens, where the Supreme Court emphasised that dissatisfaction within a marriage alone was insufficient to satisfy the statutory threshold for divorce under the MCA.
This system was majorly criticised on the basis that it encouraged hostility between separating parties by effectively institutionalising blame within divorce proceedings. In practice, parties would frequently exaggerate allegations of unreasonable behaviour in order to satisfy the legal threshold for divorce, often inflaming emotional harm and tensions between spouses. Critics also argued that the adversarial nature of the framework negatively impacted co parenting relationships and made constructive communication increasingly difficult, particularly when children were involved[9]. Although defended divorces were uncommon, the possibility of contesting a divorce demonstrated the extent to which the law could unnecessarily prolong interpersonal conflict. Consequently, growing dissatisfaction with the fault based system prompted increasing calls for legislative reform and less confrontational approach to marital breakdown.
The Reform and Introduction of No Fault Divorce
In April 2022, the Divorce, Dissolution and Separation Act 2020 (DDS) came into force, introducing the system of no fault divorce. This new Act removed the five facts; a statement of irretrievable breakdown is now sufficient. The DDS was introduced with the intention of reducing unnecessary conflict within divorce proceedings, modernising family law and promoting a more cooperative approach between separating parties[10]. The Ministry of Justice similarly stated during the consultation process that the reform sought to reduce unnecessary antagonism between separating couples and better reflect the realities of modern family breakdown[11]. The reform targeted the procedural aspects of conflict within divorce, rather than the emotional realities of marital breakdown itself. However, while the reform fundamentally altered the legal process of divorce, questions remain as to whether it has genuinely reduced conflict within family proceedings in practice.
Owens v Owens and the Criticism of Fault Based Divorce
In Owens v Owens, the Supreme Court upheld the decision to refuse Mrs Owens a divorce despite acknowledging that the marriage had clearly broken down. The case generated significant public criticism following the judgement, with many critics arguing that the law had become outdated and failed to reflect modern societal attitudes toward marriage breakdown[12]. Furthermore, the decision emphasised growing tension between strict legal formalism and the practical realities of irretrievably broken marriages. Many commentators argued that the fault based framework forced parties to exaggerate allegations of unreasonable behaviour in order to satisfy the legal threshold for divorce. Therefore, this unnecessarily increased hostility and emotional conflict between separating parties. Owens v Owens became symbolic of the wider failures of the fault based divorce system in England and Wales.
Following the judgement, Parliament became increasingly aware of the growing need for reform as the case moved to the centre of both public and legal discussion surrounding the introduction of no fault divorce. The decision exposed the extent to which the existing law could prolong unnecessary conflict by forcing parties to attribute blame despite the clear breakdown of the marriage. As a result, the introduction of no fault divorce sought to remove the legal incentive to assign fault, reduce procedural hostility and create a less adversarial approach to separation. However, while the reform addressed the procedural aspects of conflict within divorce proceedings, it also raised the central issue of whether the removal of blame has actually reduced conflict between separating parties.
Has No Fault Divorce Reduced Conflict in Practice?
The central issue, however, is whether no fault divorce has genuinely reduced conflict in practice.
As a result of the DDS removing the lengthy requirements of the MCA, divorce proceedings may now begin in a less confrontational manner. This reduces the likelihood of exaggerated allegations and, instead, promotes a more constructive approach to separation. The introduction of joint applications further reflects this movement towards cooperation, enabling separating couples to mutually acknowledge the marriage breakdown, rather than framing one party as solely responsible.
Research conducted by Liz Trinder found that fault based divorces frequently inflamed conflict by compelling parties to exaggerate behaviour in order to satisfy legal requirements, thereby increasing hostility and making cooperation difficult[13]. Empirical studies conducted prior to the reform similarly suggested that behaviour based petitions frequently exacerbated antagonism between separating parties, especially where children are involved[14]. Commentators within The Law Society have similarly argued that the removal of fault may reduce initial acrimony within divorce petitions whilst leaving wider family disputes unresolved[15]. In this respect, the removal of blame may help preserve communication between separating parties and reduce some of the emotional harm traditionally associated with divorces. However, even though no fault divorces appear to have reduced procedural hostility within the legal process itself, this does not necessarily suggest that all marital conflict has subsided.
Nevertheless, the removal of fault from divorce proceedings does not eliminate the wider disputes that frequently arise following the breakdown of a marriage. Financial disagreements concerning property division, maintenance and pensions often remain highly contentious and continue to generate significant ill will between separating parties. Similarly, disputes relating to child arrangements may intensify emotional tensions regardless of the absence of blame within the divorce petition itself. In many cases, the adversarial nature of family breakdown stems not from the legal requirement to attribute fault, but from the emotional, financial, and practical consequences of the separation. Therefore, whilst no fault divorce has created a less confrontational legal process, the reform has not entirely removed conflict from family proceedings more broadly.
Continuing Sources of Conflict beyond Divorce Proceedings
Financial Remedy proceedings
While no fault divorce has simplified the legal dissolution of marriage, financial remedy proceedings continue to generate substantial conflict between separating parties. Disputes concerning the division of assets, spousal maintenance, and pensions frequently remain highly adversarial due to the significant economic consequences attached to a divorce. Courts continue to exercise broad discretion under s25 MCA when determining financial settlements, often contributing to uncertainty and further disagreements between parties[16].
The decision in White v White[17] established the principle of fairness within financial remedy proceedings, emphasising that there should be no bias in favour of the breadwinner over the homemaker. Whilst the judgement promoted greater equality between spouses, the broad discretion afforded to judges may also contribute to uncertainty and continued litigation between separating parties. Similarly in Miller v Miller[18], McFarlane v McFarlane[19], the House of Lords reinforced the discretionary and multifaceted nature of financial remedy proceedings through the principles of sharing, compensation, and needs. Accordingly, whilst no fault divorce has reduced procedural antagonism within the process of obtaining a divorce, substantial conflict may continue through the financial consequences arising from the breakdown of the marriage.
Child Arrangement Disputes
Disputes concerning children may also continue to generate significant conflict between separating parties despite the introduction of no fault divorce. Under s1 of the Children Act 1989, the child’s welfare remains the court’s paramount consideration when determining issues relating to child arrangements and parental responsibility[20].
However, disagreements concerning residence, contact and decision making frequently remain emotionally charged and adversarial in practice. Whilst the removal of fault from divorce proceedings may reduce some initial hostility between spouses, it does not eliminate the deeply personal tensions often associated with disputes involving children. In many cases, parental conflict stems from competing emotional attachments, concerns regarding parental responsibilities and anxieties surrounding the long term welfare of the child rather than the legal process of the divorce itself.
Therefore, even though no fault divorce may encourage a more cooperative approach to marital dissolution, its practical ability to reduce conflict within wider family proceedings remains limited where disputes surrounding children arise.
The Limitations of No Fault Divorce Reform
Despite the introduction of no fault divorce representing a substantial procedural reform within family law in England and Wales, its capacity to reduce conflict between separating parties may be more limited than initially anticipated. The reform proceeds on the assumption that procedural fault was the primary catalyst for hostility within divorce proceedings. However, this may oversimplify the realities of marital breakdown. Resolution has similarly acknowledged that relationship breakdown frequently involves complex emotional and financial disputes that extend beyond the legal process of obtaining a divorce itself[21]. Consequently, whilst the removal of fault may reduce visible acrimony within divorce petitions, the deeper cause of interpersonal conflict often remains unaffected.
Furthermore, while the DDS removes the five facts in order to obtain a divorce, it does not fundamentally alter the broader adversarial structure of family proceedings. Financial remedy disputes continue to involve significant judicial discretion under s25 MCA, often contributing to uncertainty and continued disputes where parties disagree regarding fairness and entitlement. Similarly, disputes concerning children may remain emotionally complex and highly contested despite the absence of blame within divorce proceedings themselves. In this respect, the reform may be criticised for treating fault as the primary cause of marital acrimony when, in practice, emotional and financial disputes frequently persist independently of the divorce petition itself.
Moreover, the long term effectiveness of no fault divorce remains difficult to assess conclusively. As the reforms only came into force in April 2022, there remains limited empirical evidence demonstrating whether the legislation has improved post separation relationships or reduced wider family conflict over time. Whilst early indications may suggest that divorce proceedings now begin in a less confrontational manner, this does not necessarily establish that separating parties experience less hostility throughout family proceedings as a whole. The reform therefore represents a significant procedural modernisation of divorce rather than a comprehensive solution to conflict arising from marital breakdown.
Conclusion:
The introduction of no fault divorce through the DDS represents one of the most significant reforms to divorce law in England and Wales in recent decades. By removing the requirement to establish fault, the reform modernised the legal process of divorce and addressed several of the criticisms associated with behaviour based petitions under the MCA. The decision in Owens v Owens demonstrated the extent to which the former framework could prolong unnecessary hostility despite the clear breakdown of a marriage. In this respect, no fault divorce has succeeded in creating a more constructive and procedurally cooperative approach to marital dissolution.
However, this article has argued that the reform has not eliminated conflict within family proceedings more broadly. Financial remedy disputes, disagreements concerning children and the emotional consequences of separation continue to generate substantial tension between parties regardless of the absence of blame within divorce proceedings. Together with the emotional complexity of disputes involving children, illustrates that many of the difficulties arising from separation extend beyond the legal framework governing divorce alone.
At length, no fault divorce should be regarded as a significant procedural modernisation rather than a complete solution to conflict arising from marital breakdown. Whilst the reform has reduced the legal emphasis upon blame, the wider realities of family breakdown demonstrate that legal reform alone cannot entirely remove the interpersonal and economic tensions associated with separation.
Bibliography
Cases:
Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618.
McFarlane v McFarlane [2009] EWHC 891 (Fam).
Owens v Owens [2018] UKSC 41, [2018] AC 899.
White v White [2001] 1 AC 596.
Legislation:
Children Act 1989, s 1.
Divorce, Dissolution and Separation Act 2020.
Matrimonial Causes Act 1973.
Matrimonial Causes Act 1973, s 1.
Matrimonial Causes Act 1973, s 1(2).
Matrimonial Causes Act 1973, s 25.
Government Publications and Consultation Papers:
Explanatory Notes to the Divorce, Dissolution and Separation Act 2020, para 36.
Ministry of Justice, Reducing Family Conflict: Reform of the Legal Requirements for Divorce (Consultation Paper CP 19/2018, September 2018) 6–8.
Ministry of Justice, Reducing Family Conflict: Reform of the Legal Requirements for Divorce (Consultation Paper CP 19/2018, September 2018) para 31.
Books, Reports and Academic Sources
Trinder L and others, Finding Fault? Divorce Law and Practice in England and Wales (Nuffield Foundation 2017).
Trinder L and others, Finding Fault? Divorce Law and Practice in England and Wales (Nuffield Foundation 2017) paras 2.3–5.10.
Trinder L and others, Finding Fault? Divorce Law and Practice in England and Wales (Nuffield Foundation 2017) paras 4.12–4.18.
Journalistic and Professional Commentary:
Fouzder M, ‘Divorce reform could follow in wake of Owens v Owens’ Law Gazette (30 July 2018) https://www.lawgazette.co.uk/news/divorce-reform-could-follow-in-wake-of-owens-v-owens/5067092.article accessed 15 May 2026.
Fouzder M, ‘News Focus: Has no fault divorce ended the “blame game”?’ Law Gazette (10 April 2025) https://www.lawgazette.co.uk/news/no-fault-divorce-blame-game-still-rife-say-family-lawyers/5122952.article accessed 15 May 2026.
Law Society – No-fault divorce accessed 15 May 2026.
Resolution – “Blame game” ends as no-fault divorce comes into force accessed 15 May 2026.
Online Legislation Sources:
Legislation.gov.uk – Matrimonial Causes Act 1973 accessed 14 May 2026.
[1] Owens V Owens [2018] UKSC 41
[2] Matrimonial Causes Act 1973
[3] Divorce, Dissolution, and Separation Act 2020
[4] Matrimonial Causes Act 1973, s 1(2)
[5] Liz Trinder and others, ‘Finding Fault? Divorce Law and Practice in England and Wales’ (Nuffield Foundation 2017) paras 4.12-4.18.
[6] Explanatory Notes to the Divorce, Dissolution and Separation Act 2020, para 36
[7] Matrimonial Causes Act 1973, s 1
[8] Legislation.gov.uk, ‘Matrimonial Causes Act 1973’ (UK Public General Acts, 23 May 1973) < https://www.legislation.gov.uk/ukpga/1973/18/section/1/enacted> accessed 14 May 2026
[9] Liz Trinder and others, ‘Finding Fault? Divorce Law and Practice in England and Wales’ (Nuffield Foundation 2017) paras 2.3 – 5.10.
[10] Ministry of Justice, Reducing family conflict, Reform of the legal requirements for divorce’ (Consultation Paper CP 19/2018) 6-8.
[11] Ministry of Justice, ‘Reducing family conflict, Reform of the legal requirements for divorce,’ divorce’ (Consultation Paper CP 19/2018) para 31 < chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/supporting_documents/reducingfamilyconflictconsultation.pdf> accessed 14 May 2026
[12] Monidipa Fouzder, ‘Divorce reform could follow in wake of Owens v Owens’ Law Gazette (30 July 2018) < https://www.lawgazette.co.uk/news/divorce-reform-could-follow-in-wake-of-owens-v-owens/5067092.article> accessed 15 May 2026
[13] Liz Trinder and others,’ Finding Fault? Divorce Law and Practice in England and Wales’ (Nuffield Foundation 2017)
[14] Mondipa Fouzder, ‘News Focus: Has no fault divorce ended the “blame game”?’ Law Gazette (10 April 2025) < https://www.lawgazette.co.uk/news/no-fault-divorce-blame-game-still-rife-say-family-lawyers/5122952.article > accessed 15 May 2025
[15] Law Society, ‘No-fault divorce’ (5 April 2022) < https://www.lawsociety.org.uk/topics/family-and-children/no-fault-divorce> accessed 15 May 2026
[16] Matrimonial Causes Act 1973, s 25
[17] White v White [2001] 1 A.C. 596
[18] Miller v Miller [2006] UKHL 24
[19] McFarlane v McFarlane [2009] EWHC 891 (Fam)
[20] Children Act 1989, s 1
[21] Resolution, ‘” Blame game” ends as no-fault divorce comes into force’ (6 April 2022) https://resolution.org.uk/news/blame-game-ends-as-no-fault-divorce-comes-into-force/ accessed 15 May 2026
