Since the introduction of ‘no fault divorce’ in April 2022, in the vast majority of cases, once one spouse decides to apply for a divorce, the process cannot be legally blocked by the other. This is because the ability to dispute a divorce application is nowadays extremely limited under the current law.
The ‘old law’ (Pre-2022)
Any application made prior to 6 April 2022 falls under the ‘old law’ where divorce in England and Wales operated under a fault-based system. As one spouse had to specify a ‘fact’ such as adultery or unreasonable behaviour for a divorce to be granted, the other spouse had a means to contest a divorce and potentially defend a divorce application.
Why the ability to defend a divorce has been limited
The widely reported case of Owens v Owens in 2018 (which led to the introduction of no-fault divorce) drew attention to the well-known thorny issues with allowing one spouse to defend a divorce.
Mrs Owens filed for a divorce as she believed her marriage had irretrievably broken down. As per the old law (as it was at the time), Mrs Owens had to state a ground for the divorce and she stated the divorce was based on her husband’s unreasonable behaviour.
Mr Owens however defended the case, arguing at trial that his behaviour was not sufficiently unreasonable.
Mr Owens successfully defended the case on the basis that the ground was not satisfied. This left Mrs Owens being trapped in her marriage until she could show the ground that they had lived separately for five years.
The law was changed by Parliament after this case to allow one party to proceed with a divorce without the need to prove fault.
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The ‘new law’ (Post-2022)
The introduction of no-fault divorce under the Divorce, Dissolution and Separation Act 2020, removed the requirement to assign blame.
As a result, the divorce cannot be defended just because one person objects to it.
A defence can now only be raised in the following specific and narrow circumstances:
- The Court does not have the power to deal with the divorce (‘jurisdiction’)
A divorce can be challenged if the courts of England and Wales do not have the legal authority to deal with the case. This typically would arise if neither party had sufficient ties to England and Wales.
- The marriage was never valid
If the marriage was never legally valid, a divorce cannot proceed, and the application may be disputed. This could occur in circumstances such as if one or both of the parties did not have capacity to marry, they were underage, or if one party was already married.
- The parties are already legally divorced
If the parties have already been legally divorced in England and Wales or in another jurisdiction then the court cannot grant a second divorce. Therefore, a divorce can be disputed on this basis.
- Fraud or procedural non-compliance in the divorce application
A divorce may also be disputed if there has been fraud or significant non-compliance with procedural requirements in the application process. This might arise because, say, the person applying for the divorce has not served the other person with the paperwork within the 28-day-period they are required to serve the other person.
If you believe you fall within one of these narrowly defined categories, you must act promptly and file the relevant forms with the court. It is important to take legal advice swiftly if you believe you have grounds to defend the divorce, as there are tight deadlines to adhere to.
For further advice, please do not hesitate to contact one of our friendly specialist family lawyers on 01256 844 888.