Authored By: Dahlia Farzi
King’s College London
Introduction
In 2018, the UK Supreme Court held that a woman must remain legally married to a man she claimed she could not bear to live with.[1] In 2015, she left the matrimonial home and petitioned for divorce, citing 27 examples of her husband’s behaviour in an attempt to satisfy the courts.[2] The trial judge dismissed the petition, a decision later upheld by the Court of Appeal and the Supreme Court. The case, Owens v Owens [2018] UKSC 41, drew significant public and academic attention to the requirements involved in proving ‘fault’ in order to obtain a divorce.
As family circumstances become more complex and diverse, questions have been raised about whether English divorce law remains fit for purpose. Although Supreme Court justices stated that they were bound by the statute and could not depart from its wording, Parliament subsequently passed an Act to abolish the fault-based system.
This article argues that the fault-based divorce system is fundamentally ill-equipped to reflect the reality of modern marital breakdown, making legislative abolition the only adequate response. Judicial reinterpretation could not resolve this defect from the bench alone. The article proceeds as follows. Section II outlines the statutory framework governing divorce prior to the Divorce, Dissolution and Separation Act 2020 (DDSA). Section III examines the judicial interpretation of the behaviour fact, culminating in the Supreme Court’s decision in Owens v Owens. Section IV evaluates the shortcomings of the fault-based divorce system using a comparative approach. Section V considers whether the DDSA adequately addressed those deficiencies.
The Existing Legal Framework
The Matrimonial Causes Act 1973
Prior to the introduction of the DDSA 2020, divorce in England and Wales was governed by the Matrimonial Causes Act 1973 (MCA).[3] Under section 1 (1) of the Act, the sole ground upon which a court could grant a decree of divorce was that the marriage had broken down irretrievably.[4] However, irretrievable breakdown could not be established by a simple assertion from either spouse. Instead, section 1 (2) required the petitioner to prove one of five statutory facts, which served as evidence that the marriage had broken down.[5] The court was only empowered to grant a decree where one of the prescribed statutory facts had been established.
The Five Statutory Facts
Section 1 (2) of the MCA 1973 provided five alternative facts by which irretrievable breakdown could be demonstrated.[6] This included: i) that the respondent had committed adultery and the petitioner found it intolerable to live with them; ii) the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with them; iii) the respondent had deserted the petitioner for a continuous period of at least two years; iv) the parties had lived apart for a continuous period of at least two years and both parties consented to the divorce; and v) the parties had lived apart for a continuous period of at least five years immediately preceding the petition. Where none of the statutory facts could be proved, the court had no jurisdiction to grant a divorce regardless of the parties’ own personal grievances regarding their marriage.
III. Development of the Case Law
Early Judicial Interpretation
In earlier authorities, the courts adopted a relatively broad interpretation of the behaviour fact under section 1(2)(b).[7] In Livingstone-Stallard v Livingstone-Stallard [1974][8], Dunn J held that the court must consider the respondent’s behaviour in light of the particular circumstances of the marriage and determine whether the petitioner could not reasonably be expected to continue living with the respondent. This required consideration of both the nature of the respondent’s conduct and its effect on the petitioner, rather than assessing isolated incidents in abstraction. Similarly, in Pheasant v Pheasant [1972][9] , the court recognised that a course of conduct need not involve deliberate cruelty or misconduct to satisfy the statutory test. Together, these decisions established that the statutory behaviour fact was capable of accommodating a broad range of marital circumstances where the relationship had substantially deteriorated.
These judgements were subsequently reinforced in later rulings. In Stevens v Stevens [1979],[10] the court confirmed that the respondent’s conduct could justify the grant of a divorce irrespective of whether it was the sole cause of the marital breakdown. Then, in Balraj v Balraj [1981],[11] the court emphasised that the assessment of behaviour required an objective evaluation of whether the respondent’s behaviour made it unreasonable to expect the petitioner to continue living with them, while taking account of the circumstances of the particular marriage.
It was against this established line of authority that Owens v Owens [2018] came before the Supreme Court. Mrs Owens argued that her husband’s persistent criticism, lack of affection and behaviour satisfied the statutory threshold under section 1(2)(b).[12] The central issue before the Court was whether this conduct was such that Mrs Owens could not reasonably be expected to continue living with her husband.
Judge Tolson QC dismissed the petition, concluding that while the marriage had undoubtedly broken down, the examples of behaviour relied upon were “at best flimsy” and failed to satisfy the statutory threshold.[13] He further observed that “Mrs Owens had significantly exaggerated their context and seriousness” and had “cherry picked” examples of her husband’s behaviour.[14] The Court of Appeal upheld this decision, finding that the trial judge had correctly applied the established legal principles under this section. On further appeal, the Supreme Court unanimously dismissed Mrs Owens’ appeal. Lord Wilson acknowledged many would regard the outcome as troubling but concluded that the Court was bound by the statutory language enacted by Parliament. The Court emphasised that it was not the judiciary’s role to rewrite the legislation or lower the statutory threshold through judicial interpretation. Any reform of the fault-based divorce regime was therefore a matter for Parliament.
The decision therefore exposed the limits of judicial interpretation under the Matrimonial Causes Act 1973. Although earlier authorities had adopted a relatively flexible approach, the Supreme Court confirmed that the statutory framework ultimately constrained the courts, leaving legislative intervention as the only means of reform.
The Shortcomings of the Fault-Based Divorce Regime
Fault-Based Divorce
Although the MCA 1973 recognised irretrievable breakdown as the sole ground for divorce, its practical operation frequently encouraged conflict between spouses. When the statutory separation periods had not elapsed, petitioners were often left with little alternative but to rely upon allegations of fault in order to obtain an immediate divorce. Consequently, the legal process incentivised the drafting of petitions that emphasised the respondent’s shortcomings, even where both parties privately accepted that the marriage had come to an end.
This approach has been widely criticised for undermining the conciliatory objectives of modern family justice. Rather than promoting constructive dialogue, fault-based petitions often heightened hostility, making cooperation over financial settlements and arrangements for children more difficult to achieve.
Baroness Deech stated that “there can be no doubt that the state of the current law is unacceptable”,[15] further arguing that England and Wales was “lagging 50 years behind nearly every other country in the western world”.[16] This is significant because these comments acknowledge that the deficiencies exposed by Owens v Owens [2018] were not simply the result of judicial interpretation but reflected a legislative framework that had failed to keep pace with developments in other jurisdictions. The law continued to require spouses to attribute blame, even when the breakdown of their relationship was undisputed.
Comparative Perspective
Australia introduced a no-fault divorce system through the Family Law Act 1975,[17] under which the sole ground for divorce is the irretrievable breakdown of the marriage, established by a continuous period of separation. Unlike the former position under the MCA 1973, the Australian position does not require either party to establish fault or rely upon allegations concerning the conduct of the other spouse.
Similar approaches have been adopted in other jurisdictions, including New Zealand and Canada, where divorce is likewise founded upon the breakdown of the marriage rather than proof of matrimonial misconduct. Although the procedural requirements differ, these legal systems share the common objective of separating the question of whether a marriage should be dissolved from the conduct of the parties during the relationship. Consequently, the pre-2022 law in England and Wales represented a comparatively restrictive approach to divorce. The reforms introduced by the DDSA 2020 therefore brought England and Wales in line with the approach already adopted in a number of comparable common law jurisdictions.
Legislative Reform and the Future of Family Law
The Divorce, Dissolution and Separation Act 2020
The DDSA 2020 introduced the most significant reforms to divorce law in England and Wales since the enactment of the MCA 1973. While the Act retains irretrievable breakdown as the sole ground for divorce, it removes the requirement for an applicant to establish one of the five statutory facts previously required under section 1 (2) of the 1973 Act. Instead, a statement by one or both parties that the marriage has broken down irretrievably is treated as conclusive evidence of that breakdown.
The Act also introduced several procedural reforms intended to simplify the divorce process. For the first time, spouses may make a joint application for divorce, reflecting the possibility that the decision to end a marriage may be mutual rather than adversarial.[18] The Act further limits the circumstances in which a divorce may be contested, restricting challenges to issues such as jurisdiction, the validity of the marriage or procedural compliance, rather than the merits of the decision to divorce. In addition, a minimum period of twenty weeks must elapse between the commencement of proceedings and the application for a conditional order, followed by a further six-week period before a final order may be granted.[19] Collectively, these reforms marked a significant departure from the previous fault-based framework by removing the requirement for spouses to establish matrimonial fault before obtaining a divorce.
Is Reform Complete?
The need for continued review of family law has also been recognised by the government. In 2023, Lord Bellamy stated that the “the government thinks that the Law Commission is best placed to investigate all these matters and make comparative studies of various other jurisdictions“.[20] This reflects the Government’s recognition that family law requires periodic legislative review informed by comparative and policy-based analysis, reinforcing the constitutional principle that responsibility for reform lies with Parliament rather than the courts. Although DDSA 2020 addressed the law governing the dissolution of marriage, broader aspects of family law continue to attract calls for reform.
In 2025, the Law Commission concluded that the law governing financial remedies on divorce and dissolution also required reform, proposing alternative models ranging from codification of the existing law to a “codification-plus” approach[21] incorporating targeted legislative changes. However, these proposals have proved contentious. Resolution warned that reducing judicial flexibility could lead to less equitable outcomes,[22] while Edward Hess argued that further research was necessary before fundamental reform could be undertaken.[23] These developments demonstrate that wider questions concerning the modernisation of family law in England and Wales remain unresolved.
Conclusion
The analysis in this article has demonstrated that the fault-based divorce regime established under the Matrimonial Causes Act 1973 had become increasingly disconnected from the realities of modern marital breakdown. The outcome in Owens v Owens [2018] was therefore not the product of judicial unwillingness, but of a legislative framework that no longer reflected the practical operation of divorce in England and Wales.
This article has argued that the introduction of the Divorce, Dissolution and Separation Act 2020 represented the only effective means of addressing these shortcomings. By removing the requirement to establish fault and replacing it with a conclusive statement of irretrievable breakdown, the Act aligns the legal process more closely with its underlying purpose.
The reform of divorce law should not, however, be regarded as the final stage in the evolution of family law. As continuing Government and Law Commission reviews indicate, further consideration of related areas remains necessary. The challenge for future reform is to ensure that family law continues to reflect contemporary social relationships while maintaining fairness, certainty and accessibility for those it is intended to protect.
Cases
Balraj v Balraj [1981] Fam 110.
Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47.
Owens v Owens [2018] UKSC 41.
Pheasant v Pheasant [1972] Fam 202.
Stevens v Stevens [1979] 1 W.L.R. 885.
Legislation
Family Law Act 1975 (Australia).
Matrimonial Causes Act 1973 (UK).
The Divorce, Dissolution and Separation Act 2020 (UK).
Secondary Sources
Brown Chris, ‘Judgement on the Owens v Owens Case’ (Hegarty, 2018).
Hansard Parliament, ‘Divorce: Financial Provision’ (UK Parliament, 2023).
Hansard Parliament, ‘Prenuptial Agreements’ (UK Parliament, 2025).
HHJ Edward Hess, ‘Reflections on the Law Commission Paper Financial remedies on divorce and dissolution: a scoping report published on 18th December 2024’ (Financial Remedies Journal, 2025).
House of Lords Library, ‘Financial Provision on divorce and dissolution: Law Commission financial remedies scoping report’ (UK Parliament, 2025).
Resolution, ‘Resolution responds to financial remedies on divorce scoping report’ (Resolution, 2024).
[1] Owens v Owens [2018] UKSC 41
[2] Chris Brown, ‘Judgement on the Owens v Owens Case’ (Hegarty, 2018) https://hegarty.co.uk/news/judgement-on-the-owens-v-owens-case accessed 19 July 2026
[3] Matrimonial Causes Act 1973, ss 1-20
[4] ibid
[5] ibid
[6] ibid
[7] ibid
[8] Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47
[9] Pheasant v Pheasant [1972] Fam 202
[10] Stevens v Stevens [1979] 1 W.L.R. 885
[11] Balraj v Balraj [1981] Fam 110
[12] Matrimonial Causes Act 1973, s 1
[13] Owens v Owens [2018] UKSC 41
[14] ibid
[15] Hansard Parliament, ‘Prenuptial Agreements’ (UK Parliament, 2025) https://hansard.parliament.uk/Lords/2025-02-27/debates/9CF77A50-10D3-4F2B-9F0D-83B32286D4C6/PrenuptialAgreements#contribution-799BAA96-F7EA-4373-A134-46AF9E17C5CD accessed 20 July 2026
[16] ibid
[17] Family Law Act 1975, s 48
[18] The Divorce, Dissolution and Separation Act 2020, s 1
[19] ibid
[20] Hansard Parliament, ‘Divorce: Financial Provision’ (UK Parliament, 2023) https://hansard.parliament.uk/Lords/2023-03-08/debates/3AB3D708-24E5-4FF2-8481-05EFA27E2593/DivorceFinancialProvision?highlight=various%20other%20jurisdictions#contribution-E36EC4A4-0AB5-4FF2-BDF9-2621429CAF75 accessed 20 July 2026
[21] House of Lords Library, ‘Financial Provision on divorce and dissolution: Law Commission financial remedies scoping report’ (UK Parliament, 2025) https://lordslibrary.parliament.uk/financial-provision-on-divorce-and-dissolution-law-commission-financial-remedies-scoping-report/ accessed 20 July 2026
[22] Resolution, ‘Resolution responds to financial remedies on divorce scoping report’ (Resolution, 2024) https://resolution.org.uk/news/resolution-responds-to-financial-remedies-on-divorce-scoping-report/ accessed 20 July 2026
[23] HHJ Edward Hess, ‘Reflections on the Law Commission Paper Financial remedies on divorce and dissolution: a scoping report published on 18th December 2024’ (Financial Remedies Journal, 2025) https://financialremediesjournal.com/reflections-on-the-law-commission-paper-financial-remedies-on-divorce-and-dissolution-a-scoping-report-published-on-18-december-2024/ accessed 20 July 2026
