Earlier this month (April 2022), the United Kingdom reformed its law to allow no-fault divorces, a move that its government has described as ‘the biggest shake up in divorce law for more than half a century’. The reform has been widely praised, as: –
- It removes the need for separating couples to attribute blame for the breakdown of their marriage. A spouse (or a couple jointly) may now apply for divorce by simply stating their marriage has broken down irretrievably. Previously, a spouse had to either make accusations about their spouse’s conduct (e.g., ‘unreasonable behaviour’ or adultery) or endure up to 5 years of separation before a divorce could be granted. The law seemingly ignored the possibility that a couple could have simply drifted apart and have come to a joint and amicable decision to separate.
- It removes a lot of the hurt, conflict, and acrimony that comes with ‘fault-based’ divorce applications. In most cases, it simply makes no difference how or why a marriage has ended, and yet the requirement to assert fault often resulted in parties feeling obliged or encouraged to ventilate their resentments toward one another in Court. It is hoped that the introduction of ‘no-fault’ divorces will allow separating couples to focus their time, effort and resources on making practical decisions for their respective futures, their finances, and their children (if any).
- It prevents one party from vindictively contesting a divorce, thereby locking their spouse into an unhappy or even abusive marriage.
Still, some people have expressed reservations about the reform: –
- Some fear that by making divorce more accessible, couples are no longer inclined to try and make things work. That said, the new law includes a compulsory 20-week period of reflection after an application is made to mitigate the possibility of rash and regretted decisions being made.
- Some perceive that there is ‘lack of accountability’ in the no-fault approach. In some cases, a spouse might feel very strongly about the need to attribute blame for the breakdown of their marriage to their spouse (e.g., in cases involving adultery). Without an opportunity or platform for having one’s feelings ‘officially recognised’, some may struggle greatly with feeling unheard or that the court process has denied them much-needed catharsis. In this regard, there may be a considerable rise in such individuals seeking out therapeutic support to deal with such emotions in favour of seizing the time, care, and attention of the Court that might be better spent dealing with very serious and urgent cases.
Hong Kong has yet to adopt a ‘no-fault’ basis for granting divorces, but this development could be relevant to those who have already migrated to the United Kingdom. Even if you married in Hong Kong or elsewhere, if you and/or your spouse are habitual resident(s) of England and Wales, then you may be eligible to apply to the UK Court for a divorce if there is an irretrievable breakdown of the relationship.
Under Hong Kong law, a person intending to divorce must either attribute blame to their spouse for the breakdown of the marriage, or wait 1 year (with the spouse’s consent) or 2 years (without the spouse’s consent) from the date of separation to file for divorce.
Nowadays, it is uncommon for contested divorce suits to proceed all the way to a formal trial, but plenty of Divorce Petitions citing ‘unreasonable behaviour’ are still met with lengthy, heated Answer and Cross-Petitions. After all, it is only human to feel hurt, angered, upset, or insulted when faced with an accusation that they are solely to blame for an unhappy marriage.
For family law practitioners advising clients who do not wish to wait up to 2 years from separation to file for divorce, drafting a divorce petition has become a balancing act between citing particulars of behaviour that are anodyne enough to cause minimal offence to the client’s spouse but robust enough to withstand the scrutiny of the Court.
Overall, we take the view that a move to a no-fault system would be a positive one for Hong Kong. After all, the key objective in a divorce is to arrive at solutions that allow both parties to move forward in their lives, unhindered by a court process which requires attribution of blame and encourages dwelling in the past.