Introduction of no-fault divorce

    Introduction of no-fault divorce

    On 6 April 2022, the Divorce, Dissolution and Separation Act 2020 was implemented, heralding no-fault divorce. Read more in our blog post: No-fault divorce – the end of the blame game

    The law is changing for divorcing couples. On 13th June 2019, the Justice Secretary, David Gauke, introduced the Divorce, Dissolution and Separation Bill into the House of Commons. The Bill intends to remove the ‘blame’ element from divorce to allow couples to move on as amicably as possible.

    What is current divorce law?

    At present, anyone wanting a divorce has to demonstrate that the marriage has irretrievably broken down (the only legal ground to obtain a divorce) by proving that one of five facts exists. Three involve waiting until you have lived apart for at least two years, possibly five.

    Anyone seeking a divorce within two years of separating has to prove fault. This is either:

    • their spouse has committed adultery, or
    • their spouse has behaved in such a manner that they cannot reasonably be expected to live with their spouse.

    This often causes unnecessary acrimony and expense.

    According to the latest report by the Office for National Statistics, the most common reason for couples divorcing in 2017 was unreasonable behaviour. However, as 68 year old Tini Owens learnt to her cost, proving unreasonable behaviour is not always straightforward. Her husband, Mr Owens, unusually, chose to defend Mrs Owens’ divorce petition.

    In July 2018, the Supreme Court decided that Mrs Owens could not divorce her husband until she had lived apart from him for a five year period (they separated in 2015). This was because she could not demonstrate that her husband’s behaviour was such that, taking into account Mrs Owens’ own particular sensitivities and nature, she could not reasonably be expected to live with Mr Owens.

    Read more: What is unreasonable behaviour in divorce?

    At the time, many family law specialists, having picked themselves up off the floor, expressed concern. Resolution, the organisation of family lawyers committed to taking the heat out of the divorce process, warned of a “divorce crisis”. It called on politicians from all backgrounds to reform what they called, outdated laws.

    Those calls have now, finally, been heeded, not least to try and ensure divorcing parents do not find their ability to continue to work together for the benefit of their children is jeopardised by a fault-based divorce process.

    How will no-fault divorce work?

    The new system will retain irretrievable breakdown as the sole ground for divorce, but will remove the requirement to establish a ‘fact’, such as adultery or unreasonable behaviour. Instead, one or both parties would simply be required to file with the Court a statement of irretrievable breakdown.

    The Bill removes the possibility of a party contesting a divorce, as the Court must take the statement as evidence that the marriage has broken down irretrievably.

    How will the procedure change with the introduction of no-fault divorces?

    To prevent parties from making (potentially) rash decisions, there will be a minimum ‘cooling off’ period of 20 weeks between the start of proceedings and the date the Court can confirm the parties are entitled to a divorce.

    It is hoped that this will allow couples greater opportunity for reflection, and, where reconciliation is not possible, time to plan and agree practical arrangements for the future.

    While those seeking a divorce will have to wait at least six months before they can obtain a Decree Absolute - which ends the marriage - the creaking Court system means that many have to wait at least this long now. So there’s unlikely to be any more delay than within the current system - just less acrimony.

    The Bill also refers to more user-friendly terminology.

    When will no-fault divorce become law?

    We do not yet know when the Bill will become law – or when the new system will actually come into effect. The timetable may depend, in part, upon the outcome of the current political uncertainties and whether or not they give rise to an early election, but the bill appears to have cross-party support and so should, eventually, become law.

    It appears that, at long last, divorcing couples will not now have to prove one of them is to blame, nor can anyone insist that their spouse remains married against their will.

    We're here for you

    We believe the Bill is a positive step in the right direction. We are here to assist you with every step of the way, whether during the current divorce system or (hopefully) the new.

    We have experienced, professional and sympathetic family lawyers who can advise you on all aspects of relationship breakdown. This includes divorce, separation and the resolution of financial and children matters. For more information, please contact our Family Law Team who would be happy to advise you.

    Are you considering getting a divorce? Download our free guide and find out the six key decisions you need to make.

    6 key decisions for a successful divorce - download your free guide

    [This post was last updated in July 2019]

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