No-Fault Divorce 2023

Hailed the biggest shake-up in recent family law history, the Divorce, Dissolution and Separation (Isle of Man) Act 2020 came into force in the Isle of Man on 3 April 2023. Colloquially known as ‘no-fault divorce’, this Act aims to remove the process by which divorcing couples sometimes found themselves embroiled in, creating further acrimony between the parties in circumstances that are already extremely tough.

The old legislation

Under the old legislation, a party wishing to begin divorce proceedings to dissolve their marriage with their spouse could only do so under one ground: that the relationship had irretrievably broken down. This could be done by relying on one of five facts:

• Adultery committed by the other party;
• The other party has behaved in such a way that the Applicant cannot reasonably be expected to live with them;
• Two years of separation between the parties with the consent of both;
• Five years of separation between the parties without the consent of the other party; or
• The other party having deserted the Applicant without good reason for at least two years.

In numerous cases, none of the options were applicable which resulted in many being backed into a corner and choosing the only option available; alleging unreasonable behaviour of their spouse, even if no such behaviour existed. This did not fit the needs of a growing number of applicants who wanted a divorce for reasons beyond the five facts listed, such as wanting to end the marriage after falling out of love with their spouse.

The options listed also presented a danger to those in precarious situations who wanted a divorce but had no legal recourse without causing further issues, such as those being subjected to domestic abuse.

Unreasonable behaviour or unreasonable law?

A further difficulty with the old legislation was the possibility for the other party to contest a divorce application to prevent the divorce from being granted altogether.

The issue reached its pinnacle in the notorious case of Owens v Owens [2018] in England & Wales when the Supreme Court unanimously refused to grant a divorce petition to Mrs Owens. They held that they could not find any behaviour of Mr Owen that Mrs Owens could not reasonably be expected to live with, despite his alleged unreasonable behaviour. This was a result of Mr Owens contesting the divorce proceedings and successfully arguing that the marriage between the parties had not broken down irretrievably.

Whilst the Supreme Court had “uneasy feelings” about upholding the Court of Appeal’s judgment, they were bound to do so as they only have jurisdiction to interpret the law as opposed to creating new law altogether – this is a power reserved only to the legislative branch of the country, the Parliament of the UK. The Supreme Court was therefore limited in its capacity to find anything to the contrary in this case.

The outcome of Owens sparked huge public outcry in England & Wales. Many took the view that such legislation was outdated and forced unhappy parties to remain in marriages they no longer wanted to stay in. This led to a Private Member’s Bill being introduced in the House of Lords which passed through Westminster and was eventually enacted as the no-fault divorce law in England & Wales in 2019.

The Isle of Man’s Tynwald Parliament followed suit and took a similar approach in adopting no-fault divorce legislation one year later in 2020.

What does ‘no-fault’ mean?

Simply put, a ‘no-fault’ divorce avoids a party or the court needing to find ‘fault’ or blame for why the marriage has irretrievably broken down.

Instead, the new legislation enables a party to apply to the court for a divorce order supported with a statement outlining that the marriage has irretrievably broken down. There is no need to rely on one of the five facts found in previous law and avoids the inevitable ‘mud-slinging’ that often ensued between parties after divorce proceedings had been issued.

Once the application is submitted to court, a minimum period of 20 weeks is required before applying for a provisional order for the court to grant a divorce. This gives the applicant a chance for some time and space to reflect upon their decision and consider whether they are content to proceed.

Additionally, under the new Act a divorce application cannot be contested by the other party except on limited grounds such as jurisdiction. This removes the issue as presented in Owens and enables parties to unilaterally apply for divorce without fear of being prevented from obtaining it by their spouse.

Finally, the new Act introduces a new format of applying for divorce through joint applications in which parties can apply for a divorce together. This may be an ideal process to undertake when parties have amicably decided upon divorcing each other. Note that if a disagreement arises between the parties during the divorce procedure or one party stops responding to the application process, it is still possible to continue the application as a sole applicant.

Can I get a no-fault divorce without a Manx Advocate?

The simple answer is yes. Parties are free to apply to court directly without the need of a lawyer, and the onset of no-fault divorce has made divorce proceedings more straight-forward than before.

However, there are still a variety of hurdles you will be required to overcome if you choose not to instruct an Advocate to handle the legal divorce proceedings on your behalf – the primary challenges being marital assets and children. Unsurprisingly, these are the two most contentious areas between parties once divorce proceedings have commenced, and sometimes remains to be the case long after the divorce itself has been granted.

Marital Assets

The new no-fault divorce legislation has not changed the process by which financial assets are split between parties, which is still governed by the Matrimonial Proceedings Act 2003. Often this can be a complicated process, especially if numerous assets are shared between the parties such as a matrimonial home, bank accounts and pensions.

It can be particularly tricky to divide assets fairly between parties where one is the caretaker or stay-at-home spouse/parent whilst the other is the breadwinner of the family, or in high-net-worth cases where assets shared between the couple are of a sizeable nature. Further considerations must also be made with regard to factors such as if either or both parties have a disability that may prevent them from working, or which of the two parties may be the primary caretaker of the children post-divorce, as these will impact the future financial needs of each party.

The process of dividing assets between the parties can become frustrated if, for example, one of the parties attempts to covertly usurp, move or hide assets they have in order to prevent being subject to a financial claim against the other party, or certain assets have not been added to the final calculation which leads to an unfair division of assets. By not instructing a Manx Advocate to navigate these pitfalls, a divorcing party runs the risk of obtaining a quick divorce and a ‘clean break’ but being left financially disadvantaged in the long run.

Children

As a consequence to the divorce proceedings that involve children, detailed arrangements are usually drawn up to determine where, with whom and for how long they are to live with on a routine basis. Such arrangements take into consideration what the child’s schedule looks like such as where they go to school, whether they partake in any extra-curriculars or weekend activities, and any other commitments they have.

These arrangements can also have an effect on other elements such as who can receive child benefits in respect of each child. Fine-tuning the small details usually requires open communication between the parties, and oftentimes this can be achieved through their legal representatives. In this respect having a Manx Advocate can be a great asset in providing tailored advice on the best course of action that meets the parties’ needs.

This article has been written by M&P Legal's Trainee Advocate Aiza Khan with contributions from Senior Associate Michael Mudge.

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