Background to No-Fault Divorce

Currently the Divorce, Dissolution and Separation Bill more commonly known as the “No-Fault” divorce Bill is progressing through parliament. If brought into law it will bring large scale reform to the process and nature of divorce for the first time since the Matrimonial Cause Act 1973.

At present a person seeking to divorce must rely upon one of the five grounds for divorce to prove that an irretrievable breakdown of the marriage has occurred. These are: adultery (which must be admitted, it cannot simply be alleged), behaviour which makes it unreasonable for the petitioner to live with the respondent, desertion, two years separation (with the other parties’ consent) or five years separation.

This will be replaced with a system where one party provides a statement that the marriage has irretrievably broken down. It will also allow parties to submit a joint petition if they wish, a move that is hoped to remove the acrimony from the divorce process. Parties will no longer have to assign blame or wait at least two years to divorce and it is a step which has been welcomed, and campaigned for, by Family Law solicitors and clients for a time now.

It will also end the ability to defend a divorce. Defended divorces were brought to national attention in 2018 when the case of Owens v Owens reached the Supreme Court. Mrs Owens issued a divorce petition in 2015 where she alleged that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens decided to defend the petition which was the unusual feature of this case as defended petitions occur in less than 1% of divorce cases. The lengthy court proceedings that followed ended with the supreme court deciding that Mrs Owens was not entitled to a divorce on the basis of the behaviour she was alleging.

This case further strengthened the case for No-Fault divorce and, arguably, forced the law makers hands when the new Bill was introduced.

Where is the Bill currently?

At the time of writing the Bill is currently being considered by the House of Lords. It has passed the necessary stages in the House of Commons and the next House of Lords report stage will take place on 17 March 2020, though this has new been delayed due to the current COVID-19 crisis.

If the Bill successfully passes through the House of Lords, and it is not expected that there will be required to be any significant re-writes, a date for when it will become law will be announced.

Should I wait for the Bill to pass to get divorced?

The case for no-fault divorce has been championed by many legal professionals especially Resolution, and the Law Society. Unfortunately, attempts in the past have been unsuccessful. The Bill has been frustrated by the prorogation of parliament and then the December general election.

It is hoped that the Bill will face no further delays but given the difficulties in the past nothing can be guaranteed. Parliament is currently dealing with the large amount of legislation necessary to facilitate Brexit and even if successful in the House of Lords it is not known when the bill will become law.

Our advice

We would recommend that in most cases a divorce should not be delayed. Although you can separate and stop living with your spouse whilst you remain married the legal implications of that marriage remain, particularly those relating to the marital finances.

If you are unsure if you should get divorced now or wait to see if the No-Fault Bill becomes law please contact us to arrange a free initial appointment.