No fault divorce: so what has changed?

Last year saw the biggest shakeup of divorce laws in England and Wales for 50 years when the Divorce, Dissolution, and Separation Act 2020 took effect, allowing couples to separate without assigning blame, dubbed the ‘no fault divorce’.

So what has happened in the past year since the changes? Divorces have been on the rise for a long time, but has the new act accelerated this growth?

Whilst there may be a recorded increase in the number of divorce applications, , I do not believe that the change to no fault divorce has caused this.  For most people, taking the formal steps to divorce is still the last thing after all other avenues have been exhausted.  The gravity of separation, its impact on children and finances is still something that people consider with the utmost level of seriousness before deciding to embark on the process of divorce.

No fault divorce has simply made the process of obtaining a dissolution a lot easier.  Most importantly, it has taken the unnecessary acrimony out of the old process, which placed (by virtue of its wording) the need to make allegations against the other spouse, if the parties had not already been separated.

I must say that there is a degree of misunderstanding when considering the issue of ‘no fault divorce’ or divorce by consent.  As stated by the previous President of the Family Division, Sir James Munby, divorce by consent, in that divorcing husbands and wives have been agreeing to separate by pre-agreeing grounds of unreasonable behaviour, has been happening for the last 40 years in England. So maybe, the change which came into effect on 22 April 2022 finally injected some ‘intellectual honesty’, as stated by Sir James, into our methods of separation.

Although no fault divorce law came into effect last year and has been hailed as ‘revolutionary’ in some quarters, I’m afraid to say that the English legal system is a little bit behind on this one…

Islamic family law has made provision for such a method of separation known as Khula for over 1430 years now. This method of separation (I say this because there are a total of six methods of separation in Islam) is a non-fault divorce granting separation between a married couple without attributing blame, with irretrievable breakdown, or Shiqaq (as it is known in Arabic) being the sole ground.

Khula or Al-Khul is simply a situation where the husband and wife come to an agreement between themselves that the husband will grant Talaq (Islamic divorce) upon the wife repaying the Mehr (Islamic dowry payable to the wife upon marriage) or something of some value to the husband. There is no allegation of fault.

Authority for this comes from the Holy Qur’an and the Hadith (authentic recorded traditions) of the Prophet Muhammad (Peace be Upon Him). The Qur’an is very clear in advising men that they cannot take back any Mehr given as that is the right of the wife unless they separate due to not being able to fulfil the rights of relationship or friendly companionship with one another.

The Hadith is recorded in Sahih-al-Bukhari (widely regarded by Muslims the world over as the second most authentic Islamic book after the Qur’an). It records an episode during the lifetime of Prophet Muhammad (Peace be Upon Him) when he was approached by the wife of a companion of his, Thabit bin Qais. She asked the Prophet’s (Peace be Upon Him) advice saying that she could not find any defects in Thabit’s character or religion but simply could not endure to live with him. The Prophet (Peace be Upon Him) asked if she was willing to return a garden Thabit had given to her as Mehr upon which she replied that she was. This was done and Thabit bin Qais then divorced her.

It is important to note the high level of consent and transparency involved in Khula.  It must only be between the parties with no outside intervention, although they can seek the assistance of a third party to help broker the Khula.

In summary, I think it is important to make the distinction between the reason for marital breakdown and the procedure for marital breakdown.  People still view marriage as a major step and as explained above, most people understand the significance of marriage and by extension, the implications of divorce.  The change in law has not changed the reasons why human beings separate, it has simply changed the procedure in English law.

As a final thought, I ask you to consider this; Muslims have been benefiting from the provisions of ‘no-fault’ Khula for over 1430 years but there is no disproportionately high rate of divorce among Muslims – in fact it could be argued that it is the exact opposite.

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