Toby*, 43, and his ex-wife, 45, split 12 years ago. Despite both knowing they wanted to end their marriage, they waited five years, living separately, before legally obtaining a divorce. If they wanted the process to move faster one or other could have accepted blame for it ending. If no one was willing to accept fault, it would take at least two years under UK law, even if both parties agreed.
This is until now. On Monday the Queen’s Speech shared a raft of new legislation set to be introduced by Boris Johnson’s government, including a new Divorce, Dissolution and Separation Bill which will introduce ‘no fault’ divorces.
The ‘no fault divorce’ was first promised in April by Justice Secretary David Gauke but hasn’t been enacted in England and Wales. The new bill will see a move away from the current fault-based system where a partner who files for divorce has to cite one of three reasons – adultery, unreasonable behaviour or desertion.
Experts, and those who have been through the system, say this set-up meant divorce proceedings often became a “blame game” with one or other partner forced to prove wrongdoing.
For those not wanting to go down this road, the only other way to obtain a divorce – as Toby and his ex-wife did – was to separate for two years.
New laws will keep “irretrievable breakdown” of a marriage as the sole grounds for divorce, but spouses can now make a statement the marriage has broken down without producing evidence about behaviour or separation. The government is also planning to make it possible for couples to make joint applications – currently one party has to initiate divorce proceedings – and the ability of a spouse to contest a divorce will be scrapped.
This new system has been widely welcomed by those working in the field – but how much of a difference will it make to divorcing couples? It will allow people to leave relationships faster than before, of course, which – compounded by issues of children and child custody – make raise its own challenges for some.
But former spouses who spoke to HuffPost UK believe it would have helped in maintaining amicable relations with an ex-partner, avoiding finger pointing and, crucially, moving on with their lives.
“There had been no catastrophic events leading up to our divorce,” says Toby. “We had got together when we were too young, crammed our lives with events – such as having two kids, moving house frequently and getting swept along with the momentum of it all – in a bid to hide the fact that we weren’t really quite right for each other.”
Because of the circumstances, Toby, who has two daughters, 3 and 6, with his ex-wife, says it seemed “odd and somewhat unfair” they had to come up with a justification or suggest blame when there was none. So they choose to separate for five years and then deal with the paperwork.
“Our parting was amicable but we still ended up waiting for a longer time than might have been optimal,” says Toby, adding that it became a barrier for him and his ex-wife to meet new people. “A big part of divorce healing is in being able to move on, to forgive if you can (the other person as well as yourself) and to be ‘stuck’ in the marriage for so long seems to be a big constraint for all involved.”
“My ex even helped me move in with my new partner but the process of writing the 'unreasonable statement ' put that at jeopardy..."”
Kelly Fogerty, 40, from Wiltshire got divorced in November 2018 after nine years of marriage to her husband. They had been growing apart for a while but couldn’t phrase it like that on the divorce papers. “It wouldn’t have been good enough for the courts,” she says.
The couple, who have one child together, filed for divorce on the grounds of unreasonable behaviour but this meant detailing intimacies and a lack of emotional support that made Fogerty feel insincere. Not to mention they were picking apart their relationship in front of strangers in court.
“Using unreasonable behaviour made the process sadder and harder than it already was. I felt like a bully and I didn’t want to do it, it just felt unfair,” she says. “It all felt very accusatory and unnecessary.”
The whole divorce proceedings put their constructive relationship at risk, she adds, because they were forced to drag up certain things they didn’t want to. “We were and are still very amicable. My ex-partner even helped me move in with my new partner. But the process of writing the ‘unreasonable’ statement put that in jeopardy. I had to call him to explain that I didn’t want to write it but the alternative was to wait two years to separate.”
She believes that couples shouldn’t have to jump hurdles if they’ve made a decision to separate. “I think there’s a longer term effect on people too of having things written down in black and white. It’s not just not necessary.”
And 47-year-old Adrienne Cohen from Hertfordshire agrees with Toby and Kelly. She also used unreasonable behaviour to seek a divorce from her husband in August 2002, after 22 years together, 11 of them married.“We had come to the end of the road, the relationship had been toxic and all communication had broken down. We were living in a war-zone. It wasn’t healthy for us or for our children.”
She says despite the fact the relationship was no longer amicable, she still would have preferred a non-fault divorce to unreasonable behaviour. “I think having that would have played a significant role in preventing a course of action which very sadly became a blood bath.
“Whilst it’s possible such a messy divorce may have still ensued in my case, I do think that had we not been made to pick holes in each other from the outset, the anguish caused would certainly have been less.” She says the legal fees for both parties would also have been significantly less than they were.
“Divorce by its nature is a highly emotive process, and to have its foundations fixed firmly in blame only emphasises the negativity of the situation and is a dreadful way to approach such a mammoth change to people’s lives.”
Correction: this article originally stated you couldn’t apply for a divorce until 5 years of separation, even if you mutually agreed. You only have to wait 5 years if the divorce is contested by your husband or wife.