‘No Fault’ Divorce is finally coming, but what is it?
From April 6th 2022, no-fault divorce will become a viable option for separating couples in England and Wales. They will be able to proceed without specifying a reason for their divorce, nor to apportion fault or blame against one party for the end of their marriage, but what does this mean for you?
The current divorce law:
Presently, in order to get a divorce in England and Wales, you need to show that your marriage has irretrievably broken down. This is the only ground for divorce and is demonstrated by using one of the following 5 facts:
- That one party to the marriage has committed adultery and the other finds it intolerable to live with them.
- That one party has behaved in such a way that the other cannot reasonably be expected to live with that spouse.
- That one party has deserted the other for a continuous period of at least two years.
- That both parties to the marriage have lived apart for a continuous period of at least two years and both consent to the divorce.
- That both parties have lived apart for a continuous period of at least five years (no consent required).
The current procedure has long been considered at odds with Resolution and the Law Society protocols, which encourage couples to resolve their differences amicably, and work collaboratively for the benefit of themselves and their children. Currently, if you want to divorce under the current law and you have not been living apart or separated for more than two years, you can only get divorced by blaming the other party for their adultery, or their behaviour. This has served to increase tension and conflict between the couple from the start of the process.
Pleasingly in our opinion, once the law changes in April 2022, couples will be able to start a divorce without the need to apportion fault in this way, where they have not been living apart.
What is changing with no-fault divorce?
The Divorce, Dissolution and Separation Act 2020 is the biggest reform to the law surrounding divorce since the 1970s and aims to reduce conflict and acrimony between couples in divorce proceedings. Under the new legislation, the facts set out above will be replaced and instead, one or both of the parties need only provide a simple statement that states that the marriage has irretrievably broken down. No further explanation or evidence is required, and parties do not need to raise allegations of adultery, bad behaviour, or desertion to obtain a divorce.
An application for divorce can still be made by one party, but the new regime also encourages both parties to proceed together, which will be referred to as a joint petition. The two-stage process of a divorce – the decree nisi (now referred to as a conditional order) and the decree absolute (now referred to as the final order) – will remain, with a minimum timescale of 26 weeks for the process, which allows the couple a period of reflection and to attempt reconciliation, or to arrange the division of their finances.
Further, as the element of fault has been removed, so has the option to contest an application. These changes, in theory, should simplify the process of obtaining a divorce, and attempt to remove much of the animosity, or conflict, between parties.
Why the change in divorce law?
Divorce law in England and Wales has long been criticised for being outdated and that the system was open to abuse from parties wishing to prolong matters for the other as a form of coercive control.
The need for reform reached a nadir with the case of Owens v Owens. Mrs Owens submitted a petition for divorce in 2015 on the basis that her marriage had irretrievably broken down and she alleged her husband’s behaviour had been unreasonable, and that as a result she could not be expected to live with him anymore.
Mr. Owen’s contested the petition, leaving Mrs Owens to take her case to the Supreme Court to try and obtain a divorce. She was ultimately unsuccessful, with the court determining that Mr. Owens’ behaviour did not reach the requisite standard required. This decision ultimately forced Mrs Owens to remain married to Mr Owens for a further five years, until such time as she could proceed with the divorce, without his consent.
The decision was, understandably, received extremely critically by professionals such as Family Lawyers, and particularly Resolution. It was deemed as a significant step backwards, and the calls for change in the law intensified and were finally accepted.
If you have recently separated from your spouse or should like to discuss divorce with one of our specialist family law solicitors, please call our reception on 01608 656590 to arrange an appointment.