No fault divorce in England & Wales: A Withersworldwide tour

Article 30 March 2022 Experience: Divorce and family lawyers

With ‘no fault divorce’ being introduced in England in a couple of weeks’ time, I thought it was worth a quick look at the situation in some other parts of the world where Withers offers family law advice to clients – Hong Kong, Singapore and the US.

Practitioners in England (including me) have long campaigned for the introduction of no fault divorce. As the law stands now (before the changes due to be brought in on 6 April 2022), the spouse who files for divorce must ‘prove’ that the marriage has broken down to the court. They typically have to do this either by living apart from their spouse for a minimum period of two years and (in addition) obtaining their spouse’s agreement to the divorce; by living apart from their spouse for five years (with no additional requirement to obtain their spouse’s agreement); or by blaming their spouse for the breakdown of the marriage due to their adultery or unreasonable behaviour. This can often set a bad tone to proceedings at the outset, which may not have been overcome by the time the couple is trying to make arrangements for any children or trying to finalise a financial deal. Under the new law, the court will accept the couple’s word for it that their marriage has broken down without further proof and, for the first time, they can also apply for a divorce jointly instead of one spouse needing to divorce the other.

This is a positive step for a lot of couples and it means that proceedings can start off on the right foot. However, there is no one-size-fits-all system to suit everybody as both people and relationships are diverse. A lot of people believe that things happen for a reason (not just that they happen), and they wonder whether the new law will fail to meet some people’s cathartic need to explain why their marriage broke down in the way that the current system allows them to. The good news there, however, is that there will remain support for couples to help those needs to be met in the form of divorce therapy and/or the many new and alternative forms of dispute resolution.

As we will see, it is not only the law of England and Wales which is changing. In Singapore, an additional fact for no fault divorce was introduced early this year which allows parties to file for divorce by mutual agreement. So let’s turn to have a look at other countries’ divorce laws.

Hong Kong and Singapore

Hong Kong and Singapore’s legal systems were both developed under British governance and so many of their laws look familiar to the English.

The grounds on which a divorce can be obtained in either Hong Kong or Singapore bear a lot of resemblance to the current law in England.

An application (which can be joint) can be made in Hong Kong based on the parties having been separated for as little as a year (which is less than the current law in England). Alternatively, one can proceed with a divorce using one of the following four grounds to prove that the marriage has irretrievably broken down:

  • Adultery
  • Unreasonable behaviour
  • Two years separation (and the other party does not additionally need to ‘consent’ to a divorce on the basis of this period of separation as s/he would need to do under the current law in England)
  • Desertion for one year

In Singapore, meanwhile, one of the following five facts can be used to prove an irretrievable breakdown of the marriage:

  • Adultery
  • Unreasonable behaviour
  • Three years separation (where the other party consents to the divorce)
  • Four years separation (where the other party does not consent to the divorce)
  • Desertion for two years

In January 2022, the Singapore parliament enacted amendments to the law that introduced a sixth fact that allows parties to divorce by mutual agreement without having to highlight the faults of the other party. While these amendments have yet to come into effect as law, they are expected to do so by the start of 2023.

Billy Ko, one of my fellow partners in Hong Kong, explains: “Although it is necessary to demonstrate to the court that a marriage has broken down, this need not entail the parties being unnecessarily antagonistic to each other. The reasons to explain the breakdown of the marriage can be agreed between the couple in advance in order to minimise unnecessary conflict, although the facts relied upon still need to prove the irretrievable breakdown of the marriage”.

And Ivan Cheong, partner in Singapore, also says: “Most lawyers (including all of us at Withers) are used to handling the process of alleging fault with sensitivity so that it is as pain-free as possible for clients. Further the introduction of divorce by mutual agreement is a positive development that allows clients the option of divorcing without having to cite the perceived shortcomings of the other spouse which in turn reduces animosity”.

California

California was the first state to permit no fault divorce in the United States. Since 1970 when California enacted the no-fault law, every state and the District of Columbia have followed. The term used in California divorce proceedings is “irreconcilable differences” which means that there has been a breakdown in the marital relationship such that there is no hope of repair.

Samantha Klein, a partner in California says: “Before no fault divorce, spouses could easily make false allegations regarding the cause of the divorce. The spouse making those accusations could then gain a financial advantage, while the falsely accused spouse was punished reputationally and financially. With no fault divorce, spouses are on even ground and better able to keep the reason for their divorce private.”

Conclusion

The law differs around the world and, even it were possible to harmonise it, there would be advantages and disadvantages of any one system because there is no one size fits all system for all people and all relationships.

It may sound an odd thing for a lawyer to say but it to some extent doesn’t matter what the law is and whether or not we agree with it: lawyers (aside from any campaigning they may do outside of the day job) largely take the law as they find it and they know the tips and tricks for making it work for their individual clients in their individual circumstances. So regardless of whether my first client through the door on 6 April 2022 wants to preserve amicable relations with their partner or (where there are no children) sever ties completely, I will tailor my handling of the process to them, just as I would have done under the old law. I am always on my client’s side, and will make the law work for them and their objectives.

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