Authored By: Inaya Ahmed Khan
SOAS University of London
Abstract
This article discusses the Divorce, Dissolution and Separation Act 2020 which initiated the ‘No Fault Divorce’ in 2022 and led to the evolution of family law in England and Wales. This reform in legislation meant there was no longer a need for separating couples to direct blame for their marriage’s breakdown and aimed to reduce conflict between separating couples and ease stress on children[1]. This reform is a crucial turning point in family law, however some suggest it can be a detriment in separating couples and has faced criticism in the U.S for disadvantages against women[2]. This article discusses the evolution of the ‘No Fault Divorce’ in family law, its impact and wider implications on couples separating and the children involved.
Introduction
Within family law legislation in England and Wales, the Divorce, Dissolution and Separation Act 2020 is a landmark reform, introducing the ‘No Fault Divorce’ in 2022, transforming the separation process between couples and the effect it has upon children involved. This article examines the ‘No Fault Divorce’ in England and Wales and how it influences wider family life. It draws upon evidence including statistics, law commission reports, case law and wider legislation. This article also makes cross cultural and legal references to other legal jurisdictions in other countries such as the U.S and Australia to examine ‘No Fault Divorce’ in England and Wales and offer potential further reforms.
Family law prior to the Divorce, Dissolution and Separation Act 2020 and ‘No Fault Divorce’ in 2022
Prior to the Divorce, Dissolution and Separation Act 2020 and its initiation of the ‘No Fault Divorce’ in 2022, family law and legislation centred on the Divorce Reform Act 1969, later becoming part of the Matrimonial Causes Act 1973. This legislation held that the individual seeking divorce could solely divorce when their marriage had irretrievably broken down and could prove that one of five circumstances and ‘facts’ existed[3]. Three of these facts were fault based: adultery, behaviour and desertion for two years[4]. The remaining facts required two years of separation if the other spouse had given their consent to the divorce, or being separated for five years[5]. This ultimately meant couples who were not willing to wait two years and claim divorce on adultery and desertion grounds, often exaggerated or distorted events during their marriage to secure divorce[6]. This is highlighted in the Nuffield Foundation’s research in 2017, finding that solely 29% of respondents claimed their ‘fault’ reason closely matched their reason for divorce[7]. In addition, the research found around two-thirds of couples that divorced on fault grounds felt it made the process more bitter, whilst one-fifth claimed the law made it more difficult to sort out arrangements for children[8]. Furthermore, the law commission’s report in 1990 noted this legislation provoked unnecessary hostility and bitterness in the separation process, worsening matters for children as it encouraged conflict between parents to continue post-divorce[9].
Case Law
The Supreme Court case of Owens v Owens [2018] UKSC 41 further highlighted the need for a reformed legislation when Mrs Owens could not get a divorce[10]. Although the first judge held that the forty-year-old marriage broke down, Mrs Owens failed to show her husband’s behaviour towards her satisfied the legal requirements for a divorce, and while it was deemed a ‘very troubling case’ the court of appeal and supreme court could not overturn this decision as the first judge had applied the law correctly[11].
This initiated the government publishing proposals a few months later to reform this legislation, establishing the Divorce, Dissolution, and Separation Act 2020[12].
The Divorce, Dissolution, and Separation Act 2020 and ‘No Fault Divorce’ 2022
Reforming previous legislation, the Divorce, Dissolution, and Separation Act 2020, which also initiated the ‘No Fault Divorce’ in 2022, aimed to reduce separation conflict within families, with no longer a need for separating couples to direct blame for their marriage breakdown[13]. It constituted a wider action to improve the family justice system, introducing a new minimum twenty week wait between application and conditional order of divorce[14]. Rather than placing blame, both spouses can now apply for divorce claiming their marriage broke down irretrievably, relieving children of the stress and conflict derived from parental hostility[15].
‘No Fault Divorce’ as a detriment
However, despite the ‘No Fault Divorce’ being a crucial turning point in family law in England and Wales, some suggest it still can be a detriment in separating couples, whilst the act in the U.S has been said to harm and disadvantage women, particularly when considering finances post-divorce, argued by Weitzman and Peters studies in the 1980s[16]. However, Herbert Jacob’s research in response to such claims highlights that the effects of no-fault divorce ‘were either modestly benign or natural to the economic interests of divorcing women’ and had ‘little impact’ regardless of how he categorised his respondents in his research[17].
Discussion
This article sought to discuss and examine the evolution of the ‘No Fault Divorce’ and its wider implications on family law in England and Wales when couples are separating and also have children involved. This was particularly examined when looking at previous legislation, case law, statistics and law commission reports, all of which initiated reform to prior legislation and procedure in family law, relieving family conflict thus leading to the better protection of children involved in couples separating and divorcing. This article also made cross cultural and legal reference to U.S and Australian law in order to examine the ‘No Fault Divorce’ on a wider social and legal scale. This is particularly helpful when considering potential further reform in which the England and Wales system could benefit from these countries’ legal systems. Perhaps further reform could be beneficial to the ‘No Fault Divorce’ legislation through further support and mediation to vulnerable children, evident in Australia’s Family Law Act 1975 which requires separating and separated families with disputes about children to use family dispute resolution and states that they must take part in it before attending court[18]. Perhaps the English and Welsh system could benefit from adopting a similar approach to the Australian system, in order to encourage better communication between families and strengthen child welfare post separation and divorce.
Conclusion
The reformed ‘No Fault Divorce’ in England and Wales, from 2022, is a crucial landmark legislation reform since the introduction of the Divorce, Dissolution, and Separation Act 2020. The evolution of ‘No Fault Divorce’ in 2022 through the Divorce, Dissolution, and Separation Act 2020 was a crucial turning point in family law history which removed the ‘blame game’[19] in family separation and reduced conflict that would be detrimental to children involved. Perhaps further reform to ‘No Fault Divorce’ mirroring the Australian legal approach discussed above would be beneficial to further reduce family conflict and better protect children involved in separating couples.
References
Andrew Gilbert, ‘No fault divorce: how the new law will reduce family conflict’ The Conversation (London, 5 April 2022)
Australian Government, ‘Children and Family Law’ (Attorney-General’s Department, updated 1 July 2024) < https://www.ag.gov.au/families-and-marriage/families/children-and-family-law > accessed 22 July 2025
Jacob H, ‘Another Look at No-Fault Divorce and the Post-Divorce Finances of Women’ [1989] Vol, 23, No.1 Law and Society Review 95-116
Ministry of Justice, HM Courts & Tribunal Service, The Rt Hon Dominic Raab, ‘”Blame game” ends as no-fault divorce comes into force’ (GOV.UK, 6 April 2022) < https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force > accessed 22 July 2025
Case Law:
Owens v Owens [2018] UKSC 41
Legislation:
Divorce, Dissolution and Separation Act 2020
Divorce Reform Act 1969
Matrimonial Causes Act 1973
Australia, Family Law Act 1975
[1] Ministry of Justice, HM Courts & Tribunal Service, The Rt Hon Dominic Raab, ‘”Blame game” ends as no-fault divorce comes into force’ (GOV.UK, 6 April 2022) < https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force > accessed 22 July 2025
[2] Herbert Jacob, ‘Another Look at No-Fault Divorce and the Post-Divorce Finances of Women’ [1989] 95-116
[3] Andrew Gilbert, ‘No fault divorce: how the new law will reduce family conflict’ The Conversation (London, 5 April 2022)
[4] Andrew Gilbert, ‘No fault divorce: how the new law will reduce family conflict’ The Conversation (London, 5 April 2022)
[5] Andrew Gilbert, ‘No fault divorce: how the new law will reduce family conflict’ The Conversation (London, 5 April 2022)
[6] Ibid
[7] Ibid
[8] Ibid
[9] Ibid
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ministry of Justice, HM Courts & Tribunal Service, The Rt Hon Dominic Raab, ‘”Blame game” ends as no-fault divorce comes into force’ (GOV.UK, 6 April 2022) < https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force > accessed 22 July 2025
[14] Ibid
[15] Ibid
[16] Herbert Jacob, ‘Another Look at No-Fault Divorce and the Post-Divorce Finances of Women’ [1989] 95-116
[17] Ibid
[18] Australian Government, ‘Children and Family Law’ (Attorney-General’s Department, updated 1 July 2024) < https://www.ag.gov.au/families-and-marriage/families/children-and-family-law > accessed 22 July 2025
[19] Ministry of Justice, HM Courts & Tribunal Service, The Rt Hon Dominic Raab, ‘”Blame game” ends as no-fault divorce comes into force’ (GOV.UK, 6 April 2022) < https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force > accessed 22 July 2025
