Family lawyers were expecting the Divorce, Dissolution and Separation Act 2020 to take effect from autumn 2021, but the government have delayed implementation until 6 April 2022. A little longer to wait, therefore, for no fault divorce - but then we have been waiting since 1973 for an overhaul of marital law. Family lawyers are a patient bunch, it seems.

Presently, couples can only divorce on one ground - irretrievable breakdown of marriage - supported by one of five facts. Those facts are adultery, unreasonable behaviour, desertion, two years’ separation (respondent consents) and five years’ separation (no consent required). For couples seeking a quick exit, only adultery and unreasonable behaviour offer the opportunity for departure. Adultery requires an admission of no less than an act of intercourse outside marriage for the fact to be established and so many couples are directed towards unreasonable behaviour.

For obvious reasons, the legal system is presently geared towards blame and finger-pointing. A petitioner must provide four or five short examples of behaviour by a respondent illustrating cause and effect. A common example might be: the respondent was not affectionate towards the petitioner, leaving the petitioner feeling isolated and unloved. Inevitably, there are those who, upset about the ending of their marriage, get particularly personal in petitions. There are also those who may need to particularise more serious allegations to lay tactical groundwork for subsequent financial or children proceedings (ie, financial dishonesty or safeguarding concerns). The purpose of the new legislation in introducing no fault divorce means the process becomes practical rather than personal.

In an odd way, this may not appeal to all divorcing individuals, some of whom may feel strongly that they want a formal record of how their marriage ended. There are those petitioners who find the content of their divorce petition cathartic, and a validation of the trauma they feel they are suffering. There are also those, however, who draft their petitions as a spiteful exercise in vengeance and one-upmanship.

Good family lawyers will steer their clients away from a spiteful exercise. It is perfectly possible to draft an adequate petition on anodyne particulars agreed in advance with the respondent. There is always a catalyst for a marriage finally ending. Towards the end, though, there are usually recurring hints ahead of the catalyst: breakdown in emotional or physical relationship; ineffective communication; separate socialising; diverging interests; work-related stress. It is not often that petitions require tactical drafting. Almost all behaviour petitions I have drafted over the last few years have been anodyne using the above examples. The idea, of course, is to try and remove heat rather than inject it.

Ironically, no fault divorce came to pass due to a failed petition drafted on an anodyne basis. The case of Owens v Owens 2018 highlighted the inadequacies of a system that left a spouse ‘trapped’ in a marriage. Mr and Mrs Owens were already living separately when Mrs Owens’ legal team drafted an anodyne petition in an effort to discreetly divorce her. Mr Owens, seemingly to protect himself from the financial consequences of divorce, defended the petition. He did not deny the marriage was over, but he did deny the particulars of his behaviour in the petition and claimed Mrs Owens had not made out her case. To bolster her position, Mrs Owens’ lawyers were forced to do what they had set out to avoid and filed further and better behaviour particulars that stretched to over a dozen allegations.

Following a very public hearing, and legal technicalities that followed in the higher courts, Mrs Owens was unable to make out her case. With Mr Owens not incentivised to start proceedings himself, and with no allegation of adultery by Mr Owens to rely upon, Mrs Owens had no option but to wait until February 2020. At that point she was free to start proceedings on the basis of five years’ separation, which did not require the active participation of Mr Owens. Despite this, even a five year separation petition offers loopholes to snarl up financial resolution and Mrs Owens’ outcome is unknown.

So what does no fault divorce offer? A huge positive is that a couple can make a joint application to end their marriage. This is to be encouraged because it suggests cooperation and consequently a defusing of hostilities. The five facts are removed and instead a statement of irretrievable breakdown is required. The ability to contest a divorce is removed, thereby avoiding Mrs Owens’ fate. Language will be in plain English adopting the wording of civil partnership dissolutions: decree nisi becomes conditional order and decree absolute becomes final order. Overall, the divorce process becomes more user-friendly.

Family lawyers are all keeping their fingers tightly crossed that no fault divorce will not be delayed again. There are those who remember well the proposed divorce provisions of the Family Law Act 1996 that in the end were not pursued. In the meantime, BBC2’s superb ‘Motherland’ recently highlighted a family lawyer’s joke using the present terminology when a lawyer jubilantly sent out a decree nisi to her client, saying: “That’ll do nisi!”. It will, but hopefully not for too much longer.